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International Law 





As for many years previously, the discussions on 
"Situations in international law" at the Naval War 
College in 1912 were conducted by Prof. George Grafton 
Wilson, LL. D., professor of international law at Har- 
vard University, associe de PInstitut de Droit Inter- 
national, and lecturer on international law at the Naval 
War College. 

The situations all deal with points of international law 
of present general interest, but upon which practice is 
not well settled and defined. 

In these discussions the learning of an international 
lawyer is brought into contact with the experience of 
naval officers who look at the subjects under considera- 
tion from the practical viewpoint of their own profes- 
sion in the execution of their duties under the law. The 
combination gives undoubted weight to the conclusions 

In the belief that the solutions and the notes upon 
them will prove of general interest to naval officers, 
the War College annually requests their publication as 
a matter of information for the Navy. 

During the past year a general index has been pub- 
lished which covers the work of the Naval War College 
upon international law for the years 1901-1910, in- 
clusive. As stated in the preface to the General Index, 
in using these volumes it must be borne in mind that 
many of the situations discussed in the earlier volumes 
have been settled by The Hague and other subsequent 

Officers are requested to send to the college statements 
of international-law situations which promise to be in- 
teresting as subjects for future discussion at the War 


4 Preface. 

College, having specially in view matters which are 
likely to be advanced at the next Hague conference, as 
those upon which doctrine is developing and opinion is 


Captain, United States Navy, 
President Naval War College, 

United States Naval War College, 

Newport, E. /., August 9, 191*2. 



Situation I (a), (b), (c). — Merchant vessels and insurgents 9 

Solutions (a), (b), (c) 2 

Notes : 

General 10 

Why important for United States 11 

Development of acknowledgment in United States 12 

Action of the United States, 1912 14 

Consideration at Naval War College 16 

Insurgents as pirates 16 

Status of the ' 'Free party' ' 18 

Situation I (a) 20 

Visit and search 20 

(a) Visit by established state. 21 

(b) Visit and search by insurgent cruisers 23 

Instructions by Navy Department 24 

Navy regulations 26 

Conclusion 27 

Solution I (a) 27 

Situation 1(b) 27 

Blockade in Chilean insurrection, 1891 28 

Discussion in 1902 29 

Opinion in 1860 32 

Summary 32 

Solution 1(6) 33 

Situation I (c) 33 

Interference with foreign property 33 

Peru, 1858 34 

Case of the Haytien Republic, 1888 34 

Brazil, 1894. 41 

Cuban insurrections 43 

The claim of Rosa Gelbtrunk , 44 

Bolivia, 1900 46 

Haiti, 1902 '. 46 

Colombia, 1902 47 

United-States, 1903 47 

Disturbances in Santo Domingo, 1905 48 

Cuba, 1906 50 

Colombia, 1907 ■ 51 

China, 1911 52 

Conclusions 54 

Solution 1(c) 55 

Solution (a), (6), (c) " 55 

6 Table of Contents, 


Situation II.— Air craft in war (a), (6), (c), (d), (e), (/) 56 

Solutions (a), (6), (c), (d), (e), (/) 56 


Early recognition of military value of balloons 57 

Hague conventions 58 

Changed conditions since 1907 59 1 

Position of France, 1907 60 

Aerial navigation conferences 62 

Opinion of Dr. Hazeltine 62 

French opinion in 1910 64 

National regulations 68 

Jurisdiction in subjacent state 69' 

Von Bar's proposition, 1911 72 

Project before the Institute of International Law 73 

Action of institute, 1911 73 

Opinion of Fauchille 74 

Opinions on use of aerial space 75 

Russian regulations, 1904. 76 

Japanese regulations, 1904 76 

Application of principles to blockade 77 

The case of the Atalanta 77 

Jurisdiction in air space 79 

Private rights in air space 81 

Attitude of the United States 83 

Belligerent air craft in neutral territory 85 

Review of situation II (a) 87 

Solution II (a) 88 

Firing into neutral territory •. 88 

Solution 11(6) 88 

Jurisdiction over neutral air craft 88 

Opinion of Fauchille on area 89" 

Solution II (c) 90 

Resume" II (d) 9a 

Solution II (d), (e), (/) 91 

Solution II (a), (6), (c), (d), (e),(f) 91 

Situation III. — Cuba neutral 93 

Solution 93 


Acquisition of jurisdiction 93 

Degree of protection 94 

Congo lease 94 

Establishing coaling stations 96 

United States, coaling and naval stations 98 

Relations of Cuba to the United States, in consequence 

of Spanish-American War 99 

Relations of the United States and Cuba, by conven- 
tional agreements 100> 

Table of Contents. 7 

Situation III — Cuba neutral — Continued. 

Notes — Continued. Page. 

Importation of war materials , 105 

Interpretation of lease 105 

The Ionian Islands 106 

Application of Dr. Lushington's reasoning 107 

Application of Declaration of London 108 

British opinion 110 

Protection by the fleet of the United States Ill 

Relation of State Y 112 

Resume 112 

Solution 113 

Situation IV. — Strategic areas • 114 

Solution 114 


Opinion of Grotius 114 

Area of war 115 

Blockaded area 115 

Mined areas 117 

Straits in time of war 120 

News-gathering agencies 121 

Japanese ordinance, 1904 122 

Regulations, Japanese strategical areas, 1904-5 123 

Case in Russo-Japanese War 126 

Resume 128 

Solution 129 

Situation V. — Taking coal in neutral port 130 

Solutions (1), (2), (3), (4), (5) 131 


Duty of State as to contraband 131 

Opinion of Prof. Holland, 1904 132 

Belgian domestic regulation, 1901 134 

Consideration of coaling 137 

Coaling under Situation V 137 

Article 23, Declaration of London 137 

Memoranda on provisions of article 23 138 

Discussion at the naval conference 141 

Situation V (1) 142 

Solution V (1) ". 143 

Treaty of Washington 143 

Opinion of the Institute of International Law, 1875. . . 145 

Brazilian proclamation, 1898 145 

Question at The Hague, 1907 147 

Discussion at The Hague, 1907 149 

Base 153 

Review of Situation V (2) 153 

Solution V (2) 155 

Status of colliers 155 

8 Table of Contents. 

Situation V — Taking coal in neutral port — Continued. 

Notes — Continued. Page. 

Tenalty for unneutral service 155 

Solution V (3), (4), (5) 157 

Solution V (1), (2), (3), (4), (5) 158 

Situation VI. — Conversion of merchant ships into ships of war. 159 

Solution 159 


General ■ 159 

Discussion in 1906 160 

Propositions at the second Hague conference, 1907 162 

Questionnaire at second Hague conference, 1907 164 

Discussion at second Hague conference, 1907 165 

Hague convention relative to the conversion of mer- 
chant ships into war ships 169 

Retransforrnation, second Hague conference, 1907 173 

Attitude of naval powers in 1908 174 

Discussion in 1908-9 177 

Result of discussion of 1908-9 185 

British view in 1908 187 

Instructions to British delegates, 1908 188 

Report of British delegates to international naval con- 
ference 189 

Opinion in England 190 

Neutral obligations 192 

Uncertainty as to vessel's character 193 

Resume 194 

Solution 195 

Index 197 

International Law Situations. 


Situation I. 


There is an insurrection in State X and the " free 
party " is attempting to overthrow by force the estab- 
lished government of State X. The " free party " has 
not been recognized as belligerent. 

(a) An armed vessel of the "free party" is about to 
visit and search a United States merchant vessel on the 
high sea when a United States cruiser comes near. The 
master of the merchant vessel asks the United States 
commander for protection from visit and search. 

(b) During the same insurrection a merchant vessel 
of the United States is about to enter a port which the 
insurgents have declared blockaded. The merchant ves- 
sel is seized within 3 miles of the coast of the insur- 
gents at the line of blockade and while being taken into 
an insurgent port is met within 3 miles of the coast of 
State X by a United States cruiser. The master of the 
merchant vessel requests the commander of the United 
States cruiser to intervene to procure the release of his 

(<?) A merchant vessel of the United States is an- 
chored in a harbor of State X and has on board some war 
material. The " free party " is about to take this war 
material by force. The master of the merchant vessel 
appeals to the commander of the United States cruiser 
for protection. 

What action should the commander take in each case? 


(a) The commander of the cruiser of the United 
States should if possible afford the merchant vessel the 
necessary protection from visit and search. 


10 Merchant Vessels and Insurgents. 

(b) If the only reason for the seizure of the merchant 
vessel is that it was about to enter a port which the in- 
surgents have declared blockaded, the commander should 
grant the master's request, though the commander might 
require that the merchant vessel proceed to some other 

(c) The commander of the cruiser of the United 
States should inform the master of the merchant vessel 
that, while he would endeavor to prevent wanton seizure 
of his cargo, he would not interfere with proper action 
which the insurgents might take to prevent the war 
material from reaching their opponents. 


General. — The Government of the United States has 
been forced to give attention to the problems arising 
from what has come to be termed a state of insurrection. 
The many uprisings in the States of Central and South 
America and the recent disturbed conditions in Mexico 
and China in 1911 and 1912 afford examples of the com- 
plications which may arise. 

In time of insurrection there may be ample reason why 
a state of belligerency should not be recognized. The 
recognition of belligerency would place the party recog- 
nized and the established State upon the same plane as 
regards the rights of war. This might be of great advan- 
tage as regards the party desiring to overthrow or to 
break away from the established State. Such recognition 
might be a decided disadvantage to the established State. 
As the established State has the power to indicate its 
will in regard to the recognition of the belligerency of 
its revolting subjects by itself acknowledging their bel- 
ligerency, it is natural that foreign States should refrain 
from such recognition unless there be special reason de- 
manding action. At the same time interests of a foreign 
State and the rights of its subjects may be involved to 
such a degree as to make necessary some cognizance of 
the disturbed conditions. As many existing States have 
oome into being through revolutions which have over- 
thrown previously existing Governments, it can not be 
..anticipated that such movements will be disregarded or 

General Notes. 11 

will be entirely disapproved. The United States Su- 
preme Court has therefore pointed out that in order 
that injustice may not be done to any party, there may 
be a necessity which will compel a State to acknowledge 
that there exists a war de facto while not recognizing 
any state of war de jure. (The Three Friends, 166 
U S. Sup. Ct. Kepts., p. 1.) If, therefore, there exist 
in fact hostilities of the nature of war, it will be neces- 
sary for foreign States to accommodate their action to 
such a condition. If the established State is dissatisfied 
with the conduct of foreign States, there is always in its 
competence the power to recognize the revolting party 
as belligerent. The revolting party naturally desires 
the exercise of many war powers. The established State 
often claims that every act of the revolting party is an 
act of outlawry and should be punished by the State 
injured. If the party in revolt is successful, its acts may, 
however, be regarded as legal from the beginning. 

From the recognition of the facts which accompany 
revolutionary movements, and in an attempt to adapt 
State action to the facts, there has grown up since the 
latter years of the nineteenth century a somewhat well- 
established body of precedent and practice, which has 
been called the law of insurgency. The law upon all 
phases of insurrectionary conflict is not clear, and many 
new situations have arisen for which precedent does not 
exist. There has been an attempt, however, to make 
clear, so far as possible, the rights of all parties during 
the period when an armed and organized force is strug- 
gling for political ends and before belligerency has been 

Why important for United States. — History shows 
that a large number of insurrectionary movements have 
taken place on the Western Hemisphere, in the countries 
to the south of the United States. Geographical prox- 
imity has necessarily brought the United States into con- 
tact with these movements. American precedents are 
therefore most numerous. The events of the twentieth 
century seem to indicate that insurrectionary movements 

12 Merchant Vessels and Insurgents. 

are not at an end and that new problems may continually 

Development of acknowledgment in United States. — 
It is evident from such cases that the parent State may 
prefer to admit the existence of an insurrection while not 
acknowledging the existence of belligerency. Policy may 
also influence a foreign State to prefer to admit the exist- 
ence of an insurrection rather than to recognize belliger- 
ency. President McKinley, in his message of December 
6, 1897, thus summarizes the matter as regards Cuba : 

Turning to the practical aspects of a recognition of belligerency 
and reviewing its inconveniences and positive dangers, still further 
pertinent considerations appear. In the code of nations there is 
no such thing as a naked recognition of belligerency unaccom- 
panied by the assumption of international neutrality. Such recog- 
nition without more will not confer upon either party to a domestic 
conflict a status not therefore actually possessed or affect the rela- 
tion of either party to otber States. The act of recognition usually 
takes the form of a solemn proclamation of neutrality which 
recites the de facto condition of belligerency as its motive. It 
announces a domestic law of neutrality in the declaring State. 
It assumes the international obligations of a neutral in the pres- 
ence of a public state of war. It warns all the citizens and others 
within the jurisdiction of the proclaimant that they violate those 
rigorous obligations at their own peril and can not expect to be 
shielded from the consequences. The rights of visit and search 
or the seas and seizure of vessels and cargoes and contraband of 
war and good prize under admiralty law must under international 
law be admitted as a legitimate consequence of a proclamation 
of belligerency. While according to the equal belligerent rights 
defined by public law to each party in our ports disfavors would 
be imposed on both, which while nominally equal would weigh 
heavily in behalf of Spain herself. Possessing a navy and con- 
trolling the ports of Cuba her maritime rights could be asserted 
not only for the military investment of the island but up to the 
margin of our own territorial waters, aud a condition of things 
would exist for which the Cubans within their own domain could 
not hope to create a parallel ; while its creation through aid or 
sympathy from within our domain would be even more impossible 
than now, with the additional obligations of international neu- 
trality we would perforce assume. 

Or, as summarized by Prof. John Bassett Moore at 
that time : 

Moreover, the Cuban insurgents can at the present time pur- 
chase arms and munitions of war; they and their friends nrifl 

Recognition of Belligerency. 13 

sympathizers can go and come, unarmed and unorganized, to take 
part in the conflict; they can sell their securities to anyone who 
will buy them. More than this they could not do, if their belliger- 
ency were recognized, unless they had ships on the ocean. They 
could neither employ persons in the United States to serve in 
their forces, nor fit out and arm vessels in our ports, nor set on 
foot hostile expeditions from our territory. On the other hand, 
Spain would be immediately invested by international law, as well 
as by the treaty of 1795, with the international rights of belliger- 
ency, which she has so far not claimed, including the right of 
visitation and search on the high seas, and the capture and con- 
demnation of our vessels for violations of neutrality. It would 
enable Spain practically to put an end to the transportation of 
munitions of war for the insurgents. It would place under Spanish 
supervision all that vast commerce which passes through the 
waters adjacent to Cuba. (21 Forum, 297.) 

In other words, a foreign State which recognizes the 
belligerency of a party to a domestic conflict thereby 
changes the status of the parties concerned, giving to 
the parties in the conflict a war status with its obliga- 
tions and duties and assuming for itself the rights and 
obligations of neutrality. Prior to such recognition, if 
the parent State does not recognize the existence of 
war, the foreign State is largely judge of its relations 
to and conduct toward the parties to the domestic con- 
flict. There may be political, commercial, geographical, 
or other conditions which make it inexpedient for a for- 
eign State to recognize an insurgent party as a belligerent. 

It is evident that there may be many reasons why a 
foreign State would be disinclined to recognize insur- 
gents as belligerents, while at the same time the foreign 
States might be obliged to take cognizance of the exist- 
ence of the insurrection. It is the fact that this status 
of insurrection brings new obligations to States and in 
some cases advantages. 

There may also be reasons which make the parent State 
reluctant to recognize its insurgent subjects as belliger- 
ents, thus giving them full war status at home and 
abroad. Sometimes the parent State has endeavored 
before any recognition of belligerency to prescribe the at- 
titude of foreign States toward its rebellious subjects. 
This has been a common procedure on the part of the 

14 Merchant Vessels and Insurgents. 

States where revolutions have been frequent. Many ques- 
tions were raised in 1885 during the insurrection in the 
United States of Colombia. The President of Colombia 
decreed : 

That as the vessels of the opposing party in the port of Carta- 
gena were flying the Colombian flag, it was in violation of right 
and placed that party beyond the pale of international law. 

The United States refused to recognize the validity of 
the decree as affecting the relations of its officers to the 
insurgent party, and Great Britain took a similar stand. 
Hall has well said : 

It is impossible to pretend that acts which are done for the 
purpose of setting up a legal state of things, and which may in 
fact have already succeeded in setting it up, are piratical for 
want of external recognition of their validity, when the grant 
of that recognition is properly dependent in the main upon the 
existence of such a condition of affairs as can only be produced 
by the very acts in question. 

Action of the United States, 191%. — The United States 
by a formal act of Congress and by a presidential proc- 
lamation in accordance therewith in 1912 gave a more 
definite status to a condition of insurrection. 

JOINT RESOLUTION To amend the joint resolution to prohibit the ex- 
port of coal or other material used in war from any seaport of the 
United States. 

Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That the joint 
resolution to prohibit the export of coal or other material used 
in war from any seaport of the United States, approved April 
twenty-second, eighteen hundred and ninety-eight, be, and hereby 
is, amended to read as follows : 

" That whenever the President shall find that in any American 
country conditions of domestic violence exist which are promoted 
by the use of arms or munitions of war procured from the 
United States, and shall make proclamation thereof, It shall be 
unlawful to export except under such limitations and exceptions 
as the President shall prescribe any arms or munitions of war 
from any place in the United States to such country until other- 
wise ordered by the President or Congress. 

" Sec. 2. That any shipment of material hereby declared un- 
lawful after such a proclamation shall be punishable by fine not 
exceeding ten thousand dollars, or imprisonment not exceeding 
two years, or both." 

Approved, March 14, 1912. 

Presidential Proclamation, 1912. 15 

A proclamation by the President was immediately 
issued in accordance with the above resolution. 


Whereas a join resolution of Congress, approved March 14, 
1912, reads and provides as follows : " That whenever the Presi- 
dent shall find that in any American country conditions of do- 
mestic violence exist which are promoted by the use of arms or 
munitions of war procured from the United States, and shall 
make proclamation thereof, it shall be. unlawful to export except 
under such limitations and exceptions as the President shall pre- 
scribe any arms or munitions of war from any place in the United 
States to such country until otherwise ordered by the President or 
by Congress " ; 

And whereas it is provided by section 2 of the said joint reso- 
lution, " That any shipment of material hereby declared un- 
lawful after such a proclamation shall be punishable by fine not 
exceeding ten thousand dollars, or imprisonment not exceeding 
two years, or both " : 

Now, therefore, I, William Howard Taf t, President of the 
United States of America, acting under and by virtue of the au- 
thority conferred in me by the said joint resolution of Congress, 
do hereby declare and proclaim that I have found that there exist 
in Mexico such conditions of domestic violence promoted by the 
use of arms or munitions of war procured from the United States 
as contemplated by the said joint resolution ; and I do hereby 
admonish all citizens of the United States and every person to 
abstain from every violation of the provisions of the joint resolu- 
tion above set forth, hereby made applicable to Mexico, and I 
do hereby warn them that all violations of such provisions will 
be rigorously prosecuted. And I do hereby eujoin upon all 
officers of the United States, charged with the execution of the 
laws thereof, the utmost diligence in preventing violations of the 
said joint resolution and this my proclamation issued thereunder, 
and in bringing to trial and punishment any offenders against 
the same. 

In witness whereof, I have hereunto set my hand and caused 
the seal of the United States to be affixed. 

Done at the city of Washington this fourteenth day of March 
in the year of our Lord one thousand nine-hundred and twelve 
and of the independence of the United States of America the one 
hundred and thirty-sixth. 

[seal.] Wm. H. Taft. 

By the President: 

Huntington Wilson, 

Acting Secretary of State. 

16 Merchant Vessels and Insurgents. 

Consideration at Naval War College. — The Naval War 
College has from time to time given attention to the sub- 
ject of insurgency. Lectures upon the general subject 
of insurgency were .given by the present lecturer at the 
conference of 1900. Prof. John Bassett Moore discussed 
" Insurgents and contraband " as Situation V in 1901. 
The present lecturer considered "Interference by insur- 
gents with commerce" as Situation VII in 1902; "In- 
surgency — (a) Asylum for insurgent troops on war ves- 
sels; (h) Seizure of United States merchant vessel by 
insurgents; (c) Transport service of United States mer- 
chant vessel in time of insurrection; (d) Return, during 
its continuance, of foreigners implicated in insurrec- 
tion " as Situation III in 1901 ; and " Insurgency and 
commerce " as Situation VII in 1907. 

Insurgents as pirates. — While insurrections in the 
States to the south of the United States have given rise 
to many questions in regard to the rights of vessels 
of the insurrectionary party, frequent requests of the 
established Government that such vessels be treated a* 
pirates have not met with a favorable response from the 
United States. The statement of Secretary Fish in 1869 
in regard to Haitian insurgents is typical. 

I acknowledge the receipt of your dispatch (No. 13) of the 13th 
ultimo, in which you inclose a copy of a note addressed by the 
secretary for foreign affairs of Haiti to the several members of 
the diplomatic corps accredited to his Government and relating 
to the armed steamers formerly called the Quaker City and the 
Florida now in the service of insurgents against the Government 
of Haiti. The secretary for foreign affairs, after reciting the 
fact that those insurgents have not been recognized by this or 
any other Government as entitled to belligerent rights, declares 
that the vessels which form the subject of his communication can 
not be considered according to the spirit of international mari- 
time law otherwise than real pirates, which it is the duty of 
every regular navigator to pursue for the purpose of sinking or 
capturing them. He further states it to be an object of his com- 
munication to obtain from each one of the vessels of the respec- 
tive nations to whose representatives it was addressed an ade- 
quate and efficacious cooperation in maintaining for the marine 
of the civilized world the security of the seas and to guarantee 
the protection of private property. 

Haiti and United States, 1869. 17 

The good understanding which this Government earnestly de- 
sires to maintain with that of Haiti requires that this communi- 
cation should receive a frank and explicit reply. 

You will, therefore, say to the secretary for foreign affairs: 

1. That we do not dispute the right of the Government of 
Haiti to treat the officers and crew of the Quaker City and the 
Florida (vessels in the service of insurgents against Haiti) as 
pirates for all intents and purposes. How they are to be re- 
garded by their own legitimate Government is a question of 
municipal law, into which we have no occasion, if we had the 
right, to enter. 

2. That this Government is not aware of any reason which 
would require or justify it in looking upon the vessels named 
in a different light from any other vessels employed in the service 
of the insurgents. 

3. That regarding them simply as armed cruisers of insurgents 
not yet acknowledged by this Government to have attained bel- 
ligerent rights, it is competent to the United States to deny and 
resist the exercise by those vessels or any other agents of the 
rebellion of the privileges which attend maritime war, in respect 
to our citizens or their property entitled to our protection. We 
may or may not, at our option, as justice and policy may require, 
treat them as pirates in the absolute and unqualified sense, or 
we may, as the circumstances of any actual case shall suggest, 
waive the extreme right and recognize, where facts warrant it, 
an actual intent on the part of the individual offenders, not to 
depredate in a criminal sense and for private gain but to capture 
and destroy jure belli. It is sufficient for the present purpose 
that the United States will not admit any commission or authority 
proceeding from rebels as a justification or excuse for injury 
to persons or property entitled to the protection of this Govern- 
ment. They will not tolerate the search or stopping by cruisers 
in the rebel service of vessels of the United States, nor any other 
act which is only privileged by recognized belligerency. 

4. While asserting the right to capture and destroy the vessels 
in question, and others of similar character, if any aggression 
upon persons or property entitled to the protection of this Gov- 
ernment shall recommend such action, we can not admit the 
existence of any obligation to do so in the interest of Haiti or 
of the general security of commerce. 

No facts have been presented to this Government to create a 
belief that the operations of the vessels in question have been 
with a view to plunder or had any other than a political object. 
That object is hostile to a Government with which the United 
States have maintained a friendship that it requires no fresh 
manifestation to evince. We deem it most decorous to leave 
it to that Government to deal with the hostile vessels as it 
60252—12 2 

18 Merchant Vessels and Insurgents. 

may find expedient, reserving the consideration of our action in 
respect to them till some offense, actual or apprehended, to the 
United States shall render it imperative. 

You may read this dispatch to the secretary of foreign affairs 
and leave a copy of it with him if he desires it. (2 Moore, 
International Law Digest, p. 1085.) 

In Situation III (b) of 1904 (International Law Situa- 
tions, Naval War College, 1904, p. 35) the question of 
treatment of insurgents as pirates was discussed. The 
situation under consideration in 1904 was as follows : 

Situation III (&). 

There is an insurrection in State X. 

(&) The insurgents seize the Robin, a United States merchant 
vessel in the harbor, and, promising to recompense the owners, sail 
away with the vessel. The owners request the commander of 
the United States war vessel to recover the Robin in case he meets 
the vessel. The commander meets the Robin on the high sea. 

What, if anything, should the commander do? 

The solution offered and supported by reference to 
precedents was : 


The commander of the United States war vessel is justified in 
using such force as is necessary to recover the vessel which has 
been seized by the insurgents. 

It was shown that piracy in the sense of international 
law is an act implying an animus furandi, an act under- 
taken with the purpose of robbery and usually accom- 
panied by violence, and not a political act aimed at a 
particular State or at the citizens of a particular State. 

The situation proposed as III (b) in 1904 involved a 
merchant vessel which had been taken by the insurgents 
from the American owners. The solution justified an 
American commander in using force to recover the vessel 
when met on the high sea. 

Status of the "free party." — A party organized for 
political ends and in armed hostility against an estab- 
lished Government ceases to be a mob and becomes an 
insurrectionary body. The existence of such a status 
may, and sometimes must, be admitted. President Cleve- 
land, on June 12, 1895, announced by formal proclama- 
tion that the island of Cuba was the " seat of serious civil 

Recognition of Belligerency. 19 

disturbances accompanied by armed resistance to the au- 
thority of the established Government of Spain." In his 
message of December 2, 1895, he mentions the status as 
that of an " insurrection." The Supreme Court in vari- 
ous decisions has since that time recognized "the dis- 
tinction between recognition of belligerency and recogni- 
tion of a condition of political revolt, between recognition 
of the existence of war in a material sense and of war in 
a legal sense," regarding a body of men " as associated 
together in a common political enterprise and carrying 
on hostilities against the parent country " as insurgents. 
(The Three Friends, 166 U. S. Sup. Ct. Kepts., p. 1.) 

The use of the word "recognition" with both insur- 
gency and belligerency may be misleading, The recogni- 
tion of belligerency is an act of a State which may have 
other grounds than the simple existence of a disturbed 
condition and may be delayed or hastened by political or 
other reasons. The recognition of belligerency gives an 
international status to the belligerents. Recognition of 
belligerency in general gives to the recognized belligerent, 
So far as the recognizing State is concerned, the same war 
rights as are possessed by the established State. 

Insurrection implies the existence of war in the mate- 
rial sense. It may be necessary for a State to inform its 
citizens of the existence of this condition by simply an- 
nouncing the fact. The nature of the act is rather one of 
admitting a fact in regard to which there is abundant 
evidence than the recognition of a status in regard to 
which there may be doubt and which brings new obliga- 
tions upon the recognizing State. It would seem expedi- 
ent that the difference should be indicated as perhaps by 
the use of the phraseology, "recognition of belligerency" 
and " admission of insurgency." Such a distinction 
would be consistent with the argument of the Supreme 
Court in the case cited above in which it is said of the 
President's proclamations : 

We are thus judicially informed of the existence of an actual 
conflict of arms in resistance of a Government with which the 
United States are on terms of peace and amity, although acknowl- 
edgment of the insurgents as belligerents by the political depart- 
ment has not taken place. 

20 Merchant Vessels and Insurgents. 

Secretary Ha}^, in 1899, admitted the necessity which 
might arise for dealing with insurgents in a letter to 
Mr. Bridgman, Minister to Bolivia : 

You will understand that you can have no diplomatic relations 
with the insurgents implying their recognition by the United' 
States as the legitimate Government of Bolivia, but that, short 
of such recognition, you are entitled to deal with them as the 
responsible parties in local possession, to the extent of demanding 
for yourself and for all Americans within reach of insurgent 
authority within the territory controlled by them fullest protec- 
tion for life and property. (U. S. Foreign Relations, 1899, p. 

The " free party " might, by the statement of the situ- 
ation, be regarded as insurgents, and insurgency might be 
admitted to exist in the neighborhood of the port. 

Situation I (a). — In the situation now under consider- 
ation an armed vessel of the " free party," an insurgent 
party of State X, is about to visit and search a merchant 
vessel of the United States on the high sea, when a 
United States cruiser comes near, and the master of the 
merchant vessel asks the commander of the United States 
cruiser for protection from visit and search. 

Visit and search. — Visit and search, as usually under- 
stood, is a form of interference with merchant vessels 
on the high sea or in belligerent waters, which is toler- 
ated in time of war, in order that a belligerent may learn 
the nationality and relation of the vessels visited to the 

Visit and search does not, like the seizure discussed in 
Situation III (h) of 1904, necessarily involve the loss or 
possible loss of property. The delay and inconvenience 
occasioned by visit and search may be insignificant. The 
existence of insurrection may interfere to some extent 
with freedom of commerce, and some interference is 
usually tolerated. The question which arises under this 
situation is whether the interference may extend to the 
visit and search of vessels of foreign States on the high 

Visit and search in the time of war is one of the rights 
of war which has existed from the earlv davs of war 

Visit and Search. 21 

upon the sea. It is stated clearly by Lord Stowell in 
1799 in the case of the Maria: 

The right of visiting and searching merchant ships upon the 
high seas, whatever be the ships, whatever be the cargoes, what- 
ever be the destination, is an incontestable right of lawfully com- 
missioned cruisers of a belligerent nation. (C. Robinson's Ad- 
miralty Reports, p. 340.) 

The courts of the United States have repeatedly 
affirmed that " the right of search is a strictly belligerent 
right." (The Antelope, 10 Wheat., U. S. Sup. Ct. Repts.. 
p. 66; the Marianna Flora, 11 ibid., p. 1.) 

Visit and search of vessels suspected of slave trade has 
been allowed in time of peace by treaty, and in some 
instances the enforcement of customs and similar regula- 
tions has in practice extended to interference with ves- 
sels on the high seas. When a vessel is suspected of 
piracy measures may be taken to ascertain its character. 
Such measures must be taken with care, as States are 
jealous of the rights of their ships on the high seas. 

(a) Visit by established State.— -The right of visit and 
search for special reasons has been claimed at times by 
various States. The policy of the United States has been 
uniformly opposed to the admission of any such right 
except in time of war. The claim of certain States to a 
right to visit and search for the suppression of slave 
trade even was denied by the United States except when 
it was in accord with treaty stipulations. 

The right of cruisers of an established State to visit 
and search in time of insurrection foreign vessels near 
the coast or suspected of aiding the insurrection has 
often been claimed. Of the exercise of visit and search 
by a Spanish cruiser upon the American steamer El Do- 
rado in 1855 the Secretary of the Navy, in a communica- 
tion to Capt. Crabbe, said : 

This act is regarded as an exercise of power which the United 
States have ever firmly refused to recognize, and to which they 
will never submit. In the absence of a declaration of war, which 
alone belongs to Congress, our officers in command of ships of 
war would have no right to pursue and retaliate for such an act. 
But, if present when the offense is prepetrated upon a vessel 

22 Merchant Vessels and Insurgents. 

rightfully bearing the flag of our country, the officer would be 
regarded as derelict in his duty if he did not promptly interpose, 
relieve the arrested American ships, prevent the exercise of this 
assumed right of visitation or search, and repel the interference 
by force. (S. Ex. Doc. No. 1, 35th Cong., special session.) 

Spanish authorities claimed the right of visit and 
search in 1869 during the uprising in Cuba. Moore states 
the history of the case briefly, as follows : 

On the 24th of March Capt. Gen. Dulce issued another decree, 
in which it was declared that vessels captured in Spanish waters 
or on the high seas near the island of Cuba having on board men, 
arms, and munitions of war, or articles that could in any manner 
contribute to promote or foment the insurrection, whatever their 
derivation and destination, should, after examination of their 
papers and register, de facto be considered as enemies of the 
integrity of the territory and be treated as pirates in accordance 
with the ordinances of the navy, and that all persons captured 
in such vessels would, without regard to numbers, immediately 
be executed. Referring to this decree, Mr. Fish, who was then 
Secretary of State, said that the captain general of Cuba seemed 
to have " overlooked the obligations of his Government pursuant 
to the law of nations, and especially its promises in the treaty 
between the United States and Spain of 1795." Under " that law 
and treaty," said Mr. Fish, the United States expected " for their 
citizens and vessels the privilege of carrying to the enemies of 
Spain, whether those enemies were ' Spanish subjects or citizens 
of other countries,' subject only to the requirements of a legal 
blockade, all merchandise not contraband of war." Articles con- 
traband of war " when destined for the enemies of Spain " were 
" liable to seizure on the high seas," but the right of seizure was 
" limited to such articles only, and no claim for its extension to 
other merchandise, or to persons not in the civil, military, or 
naval service of the enemies of Spain," would be " acquiesced in 
by the United States." The United States could not, Mr. Fish 
declared, " assent to the punishment by Spanish authorities of 
any citizen of the United States for the exercise of a privilege " 
to which he might be " entitled under public law and treaties," 
and in conclusion he expressed the hope that the decree would be 
recalled or that such instructions would be given as would prevent 
" its illegal application to citizens of the United States or their 
property." (2 Moore, International Arbitration, p. 1021.) 

Other cases involving the principle of visit and search 
or detention arose between Spain and the United States 
during the periods of insurrections in Cuba the latter 
half of the nineteenth century. The position of the 

Visit and Search. 23 

United States was consistently maintained that there 
could be no visit and search of merchant vessels of the 
United States by the cruisers of a foreign State except 
in time of war, and that the existence of insurrection did 
not bring into operation the rules of war which permitted 
such interference with commerce. 

(h) Visit and search by insurgent cruisers. — A body 
of insurgents may obtain sufficient control of the sea to 
be able to exercise some degree of supervision of com- 
merce with ports of the State with which they are striv- 
ing. They may even proclaim that they are an organized 
political unity capable of declaring war, and that after 
such declaration they are entitled to claim the rights of 
belligerents, and as one of these rights the right of visit 
and search. It is, however, recognized as a principle of 
international law that full belligerent rights are obtained 
by an insurrectionary body, either through recognition 
of belligerency by the parent State which gives general 
belligerent rights or through recognition of belligerency 
by a foreign State which gives belligerent rights as far 
as the recognizing State is concerned. Certain acts are 
now tolerated by foreign States during an insurrection 
even when there is no thought of recognizing belliger- 
ency. It is admitted that when the insurgents are in 
actual control of a region many administrative acts are 

Mr. Chief Justice Fuller, in the case of Underhill v. 
Hernandez, November 29, 1897, says : 

Revolutions or insurrections may inconvenience other nations, 
but by accommodation to the facts the application of settled rules 
is readily reached. And where the fact of the existence of war 
is in issue in the instance of complaint of acts committed within 
foreign territory it is not an absolute prerequisite that that fact 
should be made out by any acknowledgment of belligerency, as 
other official recognition of its existence may be sufficient proof 
thereof. (168 U. S. Sup. Ct. Repts. v p. 250.) 

English, American, and other courts have recognized 
that the existence of an insurrection changes the status 
of certain persons and may bring new rights and duties. 
The United States courts have decided that the admis- 

24 Merchant Vessels and Insurgents. 

sion of the existence of insurgency brings into operation 
the neutrality laws, and the English courts have made 
similar decisions in regard to the foreign enlistment act. 

The right of visit and search has been claimed by in- 
surgents from time to time, as well as by the established 
State during insurrection. The United States has op- 
posed these claims when advanced by the established 
State, and even more positively when advanced by the 

Section 4295 of the United States Revised Statutes 
made it lawful for a private vessel to resist the aggres- 
sion of an insurgent not yet recognized as a belligerent. 
This statute provides : 

The commander and crew of any merchant vessel of the United 
States, owned wholly or in part by the citizens thereof, may oppose 
and defend against any aggression, search, restraint, depredation, 
or seizure which shall be attempted upon such vessel, or upon 
any other vessel so owned, by the commander or crew of any 
armed vessel whatsoever, not being a public armed vessel of some 
nation in amity with the United States, and may subdue and 
capture the same ; and may also retake any vessel so owned which 
may have been captured by the commander or crew of any such 
armed vessel, and send the same into any port of the United 

Instructions. — Instructions were sent by the Navy De- 
partment to Capt. J. R. Jarvis at the time of the Mexican 
insurrection, 1858-1860, as follows : 

Navy Depaktment, July 27, 1858. 
* * * You will at all times afford protection to the citizens 
of the United States and their property, and should occasion arise, 
protect any vessel of the United States from search or detention 
on the high seas by the armed ships of any other power. (Vol. 
9, S. Ex. Doc. No. 29, p. 2, 1st sess. 26th Cong., 1859-60.) 

At the time of the Chilean insurrection the Secretary 
of the Navy, Mr. Tracy, on March 26, 1891, gave to 
Admiral Brown, who was sent to relieve Admiral Mc- 
Cann, quite full instructions. 

On the 4th of March the department sent to Rear Admiral 
McCann, by telegraph, the following instructions in cipher : 

" Insurgent vessels, although outlawed by Chilean Government, 
are not pirates unless committing acts of piracy. Observe strict 

United States and Chile, 1891. 25 

neutrality. Take no part in troubles further than to protect 
American interests. Take whatever measures are necessary to 
prevent injury by insurgent vessels to lives or property of Ameri- 
can citizens, including American telegraph cables. Endeavor to 
delay bombardment by insurgents until American citizens and 
property are removed, using force, if necessary, only as a last 
resort, and when serious injury is threatened. American vessels 
seized by the insurgents without satisfactory compensation are 
liable to be recovered forcibly, but you should investigate matter 
fully before taking extreme measures, and use every precaution 
to avoid such measures if possible." 

As a further and more explicit guide for your action you are 
directed : 

(1) To abstain from any proceedings which shall be in the 
nature of assistance to either party in the present disturbance, 
or from which sympathy with either party could be inferred. 

(2) In reference to the ships which have been declared out- 
lawed by the Chilean Government, if such ships attempt to commit 
injuries or depredations upon the person or property of Americans, 
you are authorized and directed to interfere in whatever way 
may be deemed necessary to prevent such acts; but you are not 
to interfere except for the protection of the lives or property of 
American citizens. 

(3) Vessels or other property belonging to our citizens which 
may have been seized by the insurgents upon the high seas and 
for wbich no just settlement or compensation has been made are 
liable to forcible recovery; but the facts should be ascertained 
before proceeding to extreme measures and all effort should be 
made to avoid such measures. 

(4) Should bombardment of any place, by which the lives or 
property of Americans may be endangered, be attempted or 
threatened by such ships, you will, if and wben your force is 
sufficient for the purpose, require them to refrain from bom- 
barding the place until sufficient time has been allowed for 
placing American life and property in safety. 

You will- enforce this demand if it is refused, and if it is 
granted, proceed to give effect to the measures necessary for the 
security of such life or property. 

(5) In reference to the granting of asylum, your ships will 
not, of course, be made a refuge for criminals. In the case of 
persons other than criminals, they will afford shelter wherever 
it may be needed, to Americans first of all, and to others, includ- 
ing political refugees, as far as the claims of humanity may 
require and the service upon which you are engaged permit. 

The obligation to receive political refugees and to afford them 
an asylum is, in general, one of pure humanity. It should not be 
continued beyond the urgent necessities of the situation, and 
should in no case become the means whereby the plans of contend- 

26 Merchant Vessels and Insurgents, 

ing factions or their leaders are facilitated. You are not to 
invite or encourage such refugees to come on board your ship, 
but, should they apply to you, your action will be governed by 
considerations of humanity and the exigencies of the service upon 
which you are engaged. When, however, a political refugee has 
embarked, in the territory of a third power, on board an American 
ship as a passenger for purposes of innocent transit, and it ap- 
pears upon the entry of such ship into the territorial waters that 
his life is in danger, it is your duty to extend to him an offer of 

(6) Referring to paragraph 18, page 137, of the Navy Regula- 
tions of 1876, which is as follows: 

" If any vessel shall be taken acting as a vessel of war or a 
privateer without having proper commission so to act, the officers 
and crew shall be considered as pirates and treated accordingly.", 

You are informed that this paragraph does not refer to vessels 
acting in the interests of insurgents and directing their hostilities 
solely against the State whose authority they have disputed. It 
is only when such vessels commit piratical acts that they are to 
be treated as pirates, and, unless their acts are of such a char- 
acter or are directed against the persons or property of Americans 
you are not authorized to interfere with them. 

(7) In all cases where it becomes necessary to take forcible 
measures, force will only be used as a last resort, and then only 
to the extent which is necessary to effect the object in view. (H. 
Ex. Doc. No. 91. 52d Cong., 1st sess., p. 245.) 

In a telegram of May 16, 1891. in regard to the insur- 
gent steamer Itata which had left the United States 
without clearance papers and contrary to instructions 
of port officials, the Secretary of the Navy said to 
Admiral Brown : 

If Itata is found in the territorial waters of any government 
except Chile do not seize, but watch and telegraph department. 
Answer. (H. Ex. Doc. No. 91, 52d Cong., 1st sess., p. 256) 

Navy regulations. — In time of peace lawful com- 
merce on the high sea in vessels under the flag which they 
are entitled to fly is free from interference by foreign 
cruisers. Any such interference would be regarded as a 
breach of unquestionable rights. 

United States Navy Regulations, 1909, regarding in- 
tercourse with foreigners, provide as to the duties of the 
commander in chief : 

340. (1) He shall exercise great care that all under his com- 
mand scrupulously respect the territorial authority of foreign 
civilized nations in amity with the United States. 

United States Navy Regulations. 27 

342. The use of force against a foreign and friendly State, or 
against anyone within the territories thereof, is illegal. The 
right of self-preservation, however, is a right which belongs to 
States as well as to individuals, and in the case of States it- 
includes the protection of the State, its honor, and its possessions, 
and the lives and property of its citizens against arbitrary vio- 
lence, actual or impending, whereby the State or its citizens may 
suffer irreparable injury. The conditions calling for the applica- 
tion of the right of self-preservation can not be defined beforehand, 
but must be left to the sound judgment of responsible officers, 
who are to perform their duties in this respect with all possible 
care and forbearance. In no case shall force be exercised in 
time of peace otherwise than as an application of the right of 
self-preservation as above defined. It must be used only as a last 
resort, and then only to the extent which is absolutely necessary 
to accomplish the end required. It can never be exercised with a 
view to inflicting punishment for acts already committed. 

345. So far as lies within their power, commanders in chief 
and captains of ships shall protect all merchant vessels of the 
United States in lawful occupations and advance the commer 
cial interests of this country, always acting in accordance with 
international law and treaty obligations. 

Conclusion. — It is evident that the right of visit and 
search is regarded as a right which may be lawfully 
exercised only in time of war. Whatever other measures 
as regards foreign vessels the parent State or insurgents 
may take in time of insurrection, they may not resort to 
visit and search on the high sea. Orders issued by the 
authorities of the United States have enjoined resistance 
to the exercise of visit and search under such circum- 
stances. The law sanctions such resistance even by pri- 
vate vessels. The Navy regulations enjoin upon naval 
commanders the protection of merchant vessels of the 
United States from visit and search except by lawfully 
authorized vessels in time of war. 

Solution I (a). — The comamnder of the United States 
cruiser should, if possible, afford the merchant vessel the 
necessary protection from visit and search. 

Situation I (h). — Insurgency and blockade. — In lec- 
tures on " Insurgency," delivered by the present lecturer 
before the Naval War College in 1900, it was said : 

Finally, insurgency may be regarded as a fact which is gen- 
erally accepted in international practice. The admission of this 

28 Merchant Vessels and Insurgents. 

fact is by such domestic means as may seem expedient. This 
admission is made with the object of bringing to the knowledge 
of citizens, subjects, and officers of the State such facts and con- 
ditions as may enable them to act properly. In the parent 
State the method of conducting the hostilities may be a sufficient 
act of admission and in a foreign State the enforcement of a neu- 
trality law. The admission of insurgency by a foreign State is 
a domestic act which can give no offense to the parent State as 
might be the case in the recognition of belligerency. Insurgency 
is not a crime from the point of view of international law. A 
status of insurgency may entitle the insurgents to freedom of 
action in lines of hostile conflict which would not otherwise be 
accorded, as was seen in Brazil in 1894 and in Chile in 1891. It 
is a status of potential belligerency which a State, for the purpose 
of domestic order, is -obliged to cognize. The admission of in- 
surgency does not place the foreign State under new international 
obligations as would the recognition of belligerency, though it 
may make the execution of its domestic laws more burdensome. 
It admits the fact of hostilities without any intimation as to 
their extent, issue, righteousness, etc. * * * The admission 
of insurgency is the admission of an easily discovered fact. The 
recognition of belligerency involves not only a recognition of a 
fact, but also questions of policy touching many other considera- 
tions than those consequent upon the simple existence of hostili- 
ties. (Wilson, Lectures on Insurgency, 1900, pp. 16, 17.) 

Blockade in Chilean insurrection, 1891, — Prof. Moore, 
lecturing before the Naval War College in 1901, also con- 
sidered the matter of insurgency and commerce under 
Situation V, and gave a brief statement of the action of 
the insurgent vessels in Chilean waters in 1891, as 
follows : 

When the revolution was announced the British naval forces 
in Chile were instructed by the Admiralty to " take no part except 
protection of British interests." Early in the conflict the con- 
gressional deputation on the insurgent fleet notified the Govern- 
ment authorities and the foreign representatives that Iquique 
and A 7 alparaiso would be blockaded on February 1. 1891. The 
Government declared that the blockade would be illegal, and 
urged the diplomatic corps to protest against it. At the request 
of the minister for foreign affairs, the diplomatic representatives 
of France, Germany, Great Britain, and the United States met at 
the foreign office to discuss the subject. On consulting they 
agreed that the blockade would be illegal, but that they could not 
directly protest against it, as this would involve a recognition of 
the insurgent fleet, which the Government had declared to be 
piratical. As a compromise they instructed the consuls to protest 

Blockade in Chile, 1891. 29 

at their respective ports. A protest was made by the consular 
body at Iquique, January 18, 1891. to the captain of the A.lmirante 
Cochrane as follows: "The consular body being of opinion that 
the blockade notified to them will cause considerable damage to 
the persons and property of neutrals represented by them, protest 
against the act, and reserve the right to claim compensation for 
losses incurred." A similar protest was made by the consular 
corps at Valparaiso. 

At the same time Mr. Kennedy, then British minister at San- 
tiago, telegraphed for instructions as to the course which should 
be pursued in the event of a blockade being established. The 
views of the foreign office on the subject may be found in a tele- 
gram to a firm in Glasgow, January 24, 1891, as follows : 
"Assuming effective blockade to exist, escort through it can not 
be given." (International Law Situations with Solutions and 
Notes, 1901, p. 133.) 

Prof. Moore, after full discussion, concludes ; 
By this review it appears — 

1. That the British Government admitted the right of the 
insurgents to establish a blockade on the usual condition of 

2. That the British naval officers recognized the right of the 
insurgents to intercept contraband of war, and allowed them to a 
limited extent, but not as of right, to obtain coal and supplies 
for their fleet from neutral vessels. 

3. That the right to collect duties was acknowledged to belong 
to the insurgents wherever they maintained complete and effective 
possession of the place. (Ibid., p. 118.) 

Discussion in 1902. — The matter of attempt of insur- 
gents to establish blockades was again considered in 
1902, and the present lecturer was requested to put the 
results of the discussion in form for presentation to 
the Navy Department, and thence it was transmitted to 
the State Department for an opinion. Secretary Hay 
gave a carefully written opinion conforming in almost 
every respect to that expressed at the War College, 
though a little less definite in regard to the matter of 
admission of insurgent status. The letter is of such im- 
portance that even though printed 10 years ago the essen- 
tial parts may well be printed again. Secretary Hay 

Blockade of enemy ports is, in its strict sense, conceived to 
be a definite act of internationally responsible sovereign in the 

30 Merchant Vessels and Insurgents. 

exercise of a right of belligerency. Its exercise involves the 
successive stages of, first, proclamation by a sovereign State of 
the purpose to enforce a blockade from an announced date. 
Such proclamation is entitled to respect by other sovereigns con- 
ditionally on the blockade proving effective. Second, warning of 
vessels approaching the blockaded port under circumstances pre- 
venting their having previous actual or presumptive knowledge 
of the international proclamation of blockade. Third, seizure of 
a vessel attempting to run the blockade. Fourth, adjudication 
of the question of good prize by a competent court of admiralty 
of the blockading sovereign. 

Insurgent " blockade," on the other hand, is exceptional, being 
a function of hostility alone, and the right it involves is that of 
closure of avenues by which aid may reach the enemy. 

In the case of an unrecognized insurgent, the foregoing con- 
ditions do not join. An insurgent power is not a sovereign main- 
taining equal relations with other sovereigns, so that an in- 
surgent proclamation of blockade does not rest on the same 
footing as one issued by a recognized sovereign power. The 
seizure of a vessel attempting to run an insurgent blockade is 
not generally followed by admiralty proceedings for condemna- 
tion as good prize, and if such proceedings were nominally re- 
sorted to a degree of the condemning court would lack the title 
to that international respect which is due from sovereign States 
to the judicial act of a sovereign. The judicial power being a 
coordinate branch of government, recognition of the government 
itself is a condition precedent t'o the recognition of the compe- 
tency of its courts and the acceptance of their judgments as in- 
ternationally valid. 

To found a general right of insurgent blockade upon the recog- 
nition of belligerency of an insurgent by one or a few foreign 
powers would introduce an element, of uncertainty. The scale on 
which hostilities are conducted by the insurgents must be con- 
sidered. In point of fact, the insurgents may be in a physical 
position to make war against the titular authority as effectively 
as one sovereign could against another. Belligerency is a more 
or less notorious fact of which another government, whose com- 
mercial interests are affected by its existence, may take cognizance 
by proclaiming neutrality toward the contending parties, but such 
action does not of itself alter the relations of other governments 
which have not taken cognizance of the existence of hostilities. 
Recognition of insurgent belligerency could merely imply the 
acquiescence by the recognizing Government in the insurgent 
seizure of shipping flying the flag of the recognizing State. It 
could certainly not create a right on the part of the insurgents 
to seize the shipping of a State which has not recognized their 

Discussion in 1902. • 31 

It seems important to discriminate between the claim of a 
belligerent to exercise quasi sovereign rights in accordance with 
the tenets of international law and the conduct of hostilities by 
an insurgent against the titular government. 

The formal right of the sovereign extends to acts on the high 
seas, while an insurgent's right to cripple his enemy by any usual 
hostile means is essentially domestic within the territory of the 
titular sovereign whose authority is contested. To deny to an 
insurgent the right to prevent the enemy from receiving material 
aid can not well be justified without denying the right of revolu- 
tion. If foreign vessels carrying aid to the enemies of the in- 
surgents are interfered with within the territorial limits, that is 
apparently a purely military act incident to the conduct of hos- 
tilities, and, like any other insurgent interference with foreign 
property within the theater of insurrection, is effected at the 
insurgent's risk. 

To apply these observations to the four points presented in 
Prof. Wilson's memorandum, I may remark : 

1. Insurgents not yet recognized as possessing the attributes 
of full belligerency can not establish a blockade according to the 
definition of international law. 

2. Insurgents actually having before the port of the State 
against which they are in insurrection a force sufficient, if bel- 
ligerency had been recognized, to maintain an international law 
blockade, may not be materially able to enforce the conditions 
of a true blockade upon foreign vessels upon the high seas, even 
though they be approaching the port. Within the territorial 
limits of the country, their right to prevent the access of supplies 
to their enemy is practically the same on water as on land — a de- 
fensive act in the line of hostility to the enemy. 

3. There is no call for the Government of the United States 
to admit in advance the ability of the insurgents to close, within 
the territorial limits, avenues of access to their enemy. That is 
a question of fact to be dealt with as it arises. But in no case 
would the insurgents be justified in treating as an enemy a neutral 
vessel navigating the internal waters — their only right being, as 
hostiles, to prevent the access of supplies to their domestic enemy. 
The exercise of this power is restricted to the precise end to be 
accomplished. No right of confiscation or destruction of foreign 
property in such circumstances could well be recognized, and any 
act of injury so committed against foreigners would necessarily 
be at the risk of the insurgents. The question of the nature and 
mode of the redress which may be open to the Government of the 
injured foreigners in such a case hardly comes within the purview 
of your inquiry, but I may refer to the precedents heretofore 
established by this Government in enunciation of the right to re- 
capture American vessels seized by insurgents. (International 
Law Situations — Naval War College, 1902, p. 80.) 

32 Merchant Vessels and Insurgents. 

Opinion in 1860. — The present tendency is therefore 
more liberal than in some earlier cases. 

At the time of the Mexican insurrection of 1858-1860 
the Navy Department instructed Capt. Jarvis as follows : 

Navy Depaktment, March IS, 1860. 
* * * Statements having been made which lead to the be- 
lief that arrangements are making by what is known as the 
Miramon government of Mexico to establish a blockade of 
Vera Cruz and other ports on the Gulf of Mexico, the President 
has decided that no such blockade will be recognized by the 
United States. You are, therefore, directed to employ the naval 
force under your command to afford American vessels free in- 
gress and egress at all Mexican ports and fully to protect them. 
(Vol. 9, S. Ex. Doc. No. 20, p. 3, 1st sess. 35th Cong., 1859-60.) 

Summary. — As the opinions of publicists and the prac- 
tice of the United States and other States are set forth 
in Situation V of 1901, Situation VI of 1902, Situation 
III of 1904, and Situation VII of 1907, reference for 
certain aspects of insurgency may be made to these 
volumes. Prof. Moore in 1901, referring more particu- 
larly to the attempts of insurgents to interfere with 
contraband, says : 

From what has been shown it may be argued that, without 
regard to the recognition or non-recognition of belligerency, a party 
to a civil conflict who seeks to prevent, within the national juris- 
diction and at the scene of hostilities, the supply of arms and 
munitions of war to his adversary commits not art act of injury, 
but an act of self-defense, authorized by the state of hostilities; 
that, the right to carry on hostilities being admitted, it seems 
to follow that each party possesses, incidentally, the right to pre- 
vent the other from being supplied with the weapons of war ; and 
that any aid or protection given by a foreign government to an 
individual to enable him with impunity to supply either party 
with such articles is to that extent an act of intervention in the 
contest. (International Law Situations, 1901, p. 131.) 

The practice toward the end of the nineteenth century 
was to refrain so far as possible from interference with 
the actual conflict in a foreign State Avhile protecting the 
property and rights of nationals. The claims of na- 
tionals have often been for protection which would in- 
volve interference with the conflict and a participation 
favorable to one or the other party. Mr. Hay stated 

Conclusions. 33 

that when the contest had assumed the character of an 
insurrection — 

in no case would the insurgents be justified in treating as an 
enemy a neutral vessel navigating the internal waters — their only 
right being, as hostiles, to prevent the access of supplies to their 
domestic enemy. The exercise of this power is restricted to the 
precise end to be accomplished. No right of confiscation or de- 
struction of foreign property in such circumstances could well be 
recognized, and any act of injury so committed against foreigners 
would necessarily be at the risk of the insurgents. 

\n the situation under consideration the insurgents 
having a sufficient force before the port to effectively pre- 
vent ingress are acting within their rights in preventing 
the entrance of the merchant vessel of the United States, 
as they have this right " to prevent the access of supplies 
to their domestic enemy." Insurgents do not possess the 
right to condemn vessels as prize, which is strictly a war 
right. Insurgents have not a responsible government, 
and their conduct may be out of accord with that obliga- 
tory among States. The authorities of a foreign State 
may, therefore, protect the rights and property of their 
nationals so long as the protection does not extend to 
interference in the contest. To interfere to obtain the 
release of the merchant vessel which the insurgents have 
in their possession, in order that the vessel may proceed 
to the other party with its cargo, if of the nature of 
contraband, would not be justifiable unless on condition 
that the cargo would not be carried to the opposing 
party. If the cargo and vessel were innocent, release 
could be demanded. 

Solution I (b). — If the only reason for the seizure of 
the merchant vessel is that it was about to enter a port 
which the insurgents have declared blockaded, the com- 
mander should grant the master's request, though the 
commander might require that the merchant vessel pro- 
ceed to some other port. 

Situation I (c) — Interference with foreign property. — 

Interference with foreign property has often taken place 

within recent years and the treatment of the insurgents 

has varied. In general there has been a tendency to 

60252—12 3 

34 Merchant Vessels and Insurgents. 

allow the parties to carry on their operations so long as 
there was not an undue interference with recognized 
rights of foreigners. The examples which show the 
practice of the period since the middle of the nineteenth 
century are illustrative. 

Peru, 1858. — Prof. Moore cites Secretary Cass, who in 
a letter to Mr. Osma, the Peruvian minister, on May 22, 
1858, says: 

It is the duty of foreigners to avoid all interference under such 
circumstances (in cases of civil war), and to submit to the 
power which exercises jurisdiction over the places where they 
resort, and, while thus acting, they have a right to protection, 
and also to be exempted from all vexatious interruption, when 
the ascendency of the parties is temporarily changed by the events 
of the contest. Undoubtedly the considerations you urge respect- 
ing the true character of an armed opposition to a government are 
entitled to much weight. There may be local insurrections, armed 
opposition to the laws, which carry with them none of the just 
consequences recognized by the law of nations as growing out of 
a state of civil war. No fixed principle can be established upon 
this subject, because much depends upon existing circumstances. 
Cases, as they arise, must be determined by the facts which they 
present ; and the avowed objects of the parties, their relative 
strength, the progress they respectively make, and the extent of 
the movement, as well as other circumstances, must be taken into 

While contending parties are carrying on a civil war those por- 
tions of the country in the possession of either of them become 
subject to its jurisdiction, and the persons residing there owe to 
it temporary obedience. But when such possession is changed 
by the events of the war and the other party expels its opponents, 
the occupation it acquires carries with it legitimate authority, 
and the right to assume and exercise the functions of the govern- 
ment. But it carries with it no right, so far, at any rate, as 
foreigners are concerned, to give a retroactive effect to its meas- 
ures and expose them to penalties and punishments and their 
property to forfeiture for acts which were lawful and approved 
by the existing government when done. (1 Moore, International 
Law Digest, sec. 20, p. 43.) 

Case of the " H ay tien Republic" 1888. — In a letter to Mr. 
Bayard, Secretary of State, October 27, 1888, the agents 
for the steamship Haytien Republic said : 

Sir : We are informed that the consul of the Haitian Govern- 
ment in New York has received a cablegram from Port au Prince 

Case of Haytien Republic, 1888. 35 

slating that the steamship Haytien Republic, of Boston, has been 
seized at St. Marc, Haiti, and that ship and crew have been taken 
to Port au Prince and there detained. 

The steamship Haytien Republic is owned and manned by citi- 
zens of the United States, and is regularly employed in carrying 
United States mails, passengers, and general freight between the 
United States and Haiti. Said steamship cleared and sailed from 
New York on the 4th instant, with United States mails, several 
passengers, and general cargo for various ports in Haiti, having 
no arms, ammunition, or unlawful merchandise on board. 

We have no information from the master of the vessel whatever 
as to the seizure, and fear that he has been prevented from com- 
municating with us. 

The detention of the steamer causes great pecuniary loss to 
the owners of the steamer and cargo. 

We therefore respectfully ask that the case may be investigated, 
and that a Government vessel be sent to Port au Prince at once 
to secure the liberty of the crew and to protect the interests of all 

We remain, etc., B. C. Morse & Co., 

Agents for Steamship " Haytien Republic.'''' 

(U. S. S. Ex. Doc. No. 69, 50th Cong., 2d sess., p. 69.) 

The Haitian authorities, under whose orders the Hay- 
tien Republic was taken into port, expressed their ideas 
of the action in the summons to the captain of the Hay- 
tien Republic and the local agent as follows : 

Whereas during the existence of a state of war it is the duty 
of neutrals to abstain from all participation in the contest that 
is going on; 

Whereas the American steamer Haytien Republic has violated 
those principles of neutrality by transporting troops, arms, and 
emissaries for the account of the insurrection ; 

Whereas those acts furnish sufficient reason to consider that 
vessel as being hostile ; 

Whereas on the 16th day of October the provisional government 
declared the ports of the Cape, St. Marc, and Gonaives to be 
blockaded; whereas due notice thereof was given to the repre- 
sentatives of the .neutral powers, and the decree announcing the 
blockade was published in all the towns of the Republic ; whereas 
when the steamer Haytien Republic appeared off the port of St. 
Marc, that port was blockaded ; 

Whereas the blockade was effective, since the Haitian advice 
vessel Dessalines guarded the entrance; and whereas the Haytien 
Republic must have eluded the vigilance of the blockading forces 

36 Merchant Vessels and Insurgents. 

and Lave taken advantage of its superior speed so as not to be 
sunk ; 

Whereas signals were made to it, and six cannon shots, with 
ball, were fired at it for the purpose of stopping it, which acts 
constitute a sufficient special notice of a blockade; 

Whereas the vessel was captured just as it was sailing out of 
the port of St. Marc, into which it had forced an entrance and to 
which it had borne dispatches ; 

Whereas numerous evidences confirm its illegal participation 
in the acts of the insurrection of the north ; whereas the captain 
refused to show his papers or to allow his vessel to be searched 
by the examining judges, which he did in order to conceal the 
papers that were likely to compromise him ; and whereas he also 
refused to allow seals to be placed upon his vessel ; 

Whereas a delegation consisting of leaders of the insurrection- 
ary movements is still on board of his vessel, and was there at 
the time when the capture took place ; 

Whereas the violation of a blockade is an offense which is pro- 
vided for and made punishable by international law; 

To hear sentence pronounced upon them, the one to be con- 
demned to the forfeiture and relinquishment of the vessel under 
his command, which is to be awarded to the Haitian Government, 
to which it has occasioned great injury, and the cargo thereof to 
be confiscated. (Ibid, p. 116.) 

In the Haytian statement of the law which governed 
this ease was the following: 

Considering that in case of war between two States, and, there- 
fore, in case of insurrection of a portion of a country against the 
established Government, neutral States and their subjects are 
bound not to interfere in the struggle, whether it be to aid one 
of the belligerents or to aid the rebels. 

That the neutrals who break this obligation render themselves 
liable to be treated as enemies, and that this rule applies to ships 
as to individuals. 

That it is generally admitted that the neutral ship which trans- 
ports either troops, arms, correspondence, or emissaries, who 
enters in any manner whatsoever into the service of one of the 
belligerents, or in that- of the insurgents, places itself beyond the 
protection given to neutral property, and can be lawfully con- 
demned and confiscated. (Ibid, p. 129.) 

Many other specific considerations were enumerated, 
and finally the decision was rendered on October 31 con- 
fiscating the steamer, contraband, and goods belonging 
to the enemy, making the captain and crew liable to 

Case of Haytien Republic, 1888. 37 

further proceedings, and condemning the owners to pay 
50,000 piasters. 

On November 2, 1888, the minister of the United 
States sent a letter protesting against the action: 

Legation of the United States, 
Port au Prince, Haiti, November 2, 1888. 
Sir : The undersigned has been informed authoritatively that a 
tribunal has rendered a verdict that the American steamship 
Haytien Republic be delivered to the authorities at Port au 
Prince, and in consequence that all of the crew on board leave 
the ship. Now I, the undersigned, minister resident of the United 
States, protest in the name of the Government of the United 
States against: 

(1) The seizure of such vessel. 

(2) Against the irregular tribunal that has rendered the de- 

(3) Against the verdict. 

(4) Against any action being taken by the authorities until I 
can receive instructions from my Government. 

And do by the present hold the authorities of Port au Prince 
responsible for all damages in the premises, declaring most sol- 
emnly, at the same time, that the crew of the above-mentioned 
steamer are under the protection of my flag, the ensign of the 
United States of America. 

The undersigned has the honor to be, sir, with assurance of dis- 
tinguished consideration, 

Your obedient servant, 

John E. W. Thompson. 
Hon. Osman Piquant, 

Secretary of State of Foreign Relations ad interim, 

Port au Prince. 
(Ibid, p. 163.) 

In a long review and opinion on the case Secretary 
Bayard on November 28, 1888, said : 

On the 26th instant the department received a full report upon 
the case by the captain of the United States steamer Boston, who 
had just returned from Port au Prince to the port of New York. 

Upon examinations of the record and proceedings in the case, 
the department is led to the conclusion that the seizure aud deten- 
tion of the vessel and the imprisonment of her officers have, 
from the beginning, been irregular and wrongful ; that she should, 
without delay, be restored to her American owners, and her 
officers released from all detention ; and that adequate compensa- 

38 Merchant Vessels and Insurgents. 

tion should be made to them and to the owners of the vessel for 
the loss and injuries they have suffered by reason of the proceed- 
ings in question. 

It is unnecessary to discuss the charge of attempting to run a 
blockade, upon which allegation it is understood that the seizure 
of the vessel was originally made. Whether any valid blockade 
did or did not exist, it is clear that the Haytien Republic had and 
could have had no notice of it. (Ibid., p. 171.) 

Then after mentioning other matters the irregularity 
of the proceedings are referred to and the treaty pro- 
visions cited : 

From the above stipulations it is manifest that so far as the 
proceedings against the Haytien Republic rest upon a charge of 
attempting to run a blockade, they were in clear violation of the 
express terms of the treaty, and wholly improper and iu ad- 

Nor can the tribunal by which the charges against the Haytien 
Republic and her officers were examined be recognized by this 
Government as competent for that purpose. By the twenty- 
eighth article of the treaty above referred to it is provided that 
in matters of prize " in all cases the established courts for prize 
causes in the country to which the prizes may be conducted 
shall alone take cognizance of them." 

The tribunal before which the Haytien Republic and her officers 
were brought was hastily improvised for the occasion and con- 
sisted of two commissioners specially appointed on the 2ist of 
October, 1888, to examine the case of the Haytien Republic. It 
was in no sense " an established court, for prize causes," as 
stipulated in the treaty, but had for its special and only au- 
thority the order of the provisional president, Legitime. Its pro- 
ceedings had scarcely a feature of formality and regularity. 
(Ibid., p. 173.) 

Reviewing the conditions in Haiti, Secretary Bayard 
further says: 

Local supremacy in Haiti thus shifts from week to week, and 
from hand to hand, so rapidly and unexpectedly that it would be 
wholly unreasonable and impossible to subject the merchant ma- 
rine and citizens of other countries, who find themselves so sur- 
rounded by factions contending violently for mastery, to extreme 
penalties, because of their alleged favor to either side, or because 
of their necessary and enforced acquiescence in the demands of 
factions locally and temporarily in power. 

The rights of person and property of American citizens engaged 
iD business in Haiti can not be permitted to become the football 

Case of Hay Hen Republic ■, 1888. 39 

of contesting factions and their evanescent authority ; and the 
protecting arm of the United States will be interposed for their 
security. By this it is not intended to include cases of deliberate 
intermeddling in local conflicts, but merely to rescue our citizens 
who may be caught in the eddies of local sanguinary ententes. 

The defects and misfortunes of the Republic of Haiti must not 
be visited upon the citizens of a friendly country, who have con- 
tributed in no way to the unhappy condition of affairs with which 
they find themselves unexpectedly confronted. * * * In view, 
therefore, of what I have herein fully laid before you I desire to 
express, under the direction of the President, his confident expecta- 
tion that without delay the steamer Haytien Republic will be 
released by the authorities at Port au Prince and returned to the 
custody of her officers and crew, and that investigation may be at 
once commenced to ascertain the injuries inflicted upon the owners 
of the vessel, and also upon the captain, officers, and crew in the 
course of this illegal and most regrettable interference with their 
rights. (Ibid., p. 175.) 

There was much further correspondence and consider- 
able delay. At length, on December 20, 1888, Rear 
Admiral Luce sent to the minister of the United States in 
Haiti the following communication: 

U. S. Flagship " Galena," 
Port au Prince, Haiti, December 20, 1SS8. 

Sir: The President of the United States having decided that 
the seizure and detention of the American steamer Haytien Repub- 
lic by the Haitian authorities " have from the beginning been 
irregular and wrongful," I am here to cooperate with you in 
obtaining her prompt restoration. 

As my stay at Port au Prince is very limited, I must ask that 
you will, at the earliest practicable moment, represent to the 
Haitian authorities the necessity of the immediate withdrawal of 
the guard from the steamer Haytien Republic, in order to avoid 
the possibility of a collision between it and the officer I shall 
shortly send to her. The guard having been withdrawn, the 
formalities attending the transfer of the vessel to her owners or 
their agents can readily be arranged. 

To prevent misunderstanding and the untoward results that 
might follow, I beg you will inform the authorities that an officer 
of this command will be ready to receive the Haytien Republic at 
3 o'clock this p. m, by which time it is hoped the guard will have 
been withdrawn. 

As it is my intention to take the steamer to the anchorage in 
the outer harbor this afternoon before sunset, I doubt not that the 
feeling of friendship which has always so happily existed between 

40 Merchant Vessels and Insurgents. 

the two countries will prompt the authorities to render every 
facility for carrying that intention into execution. 
Very respectfully, etc., 

8. B. Ltjce, 
Rear Admiral, United States Navy, Commanding 
United States Naval Forces, North Atlantic Squadron. 
John E. W. Thompson, 

United States Minister to Haiti. 

(Ibid., p. 242.) 

A letter of December 26, 1888. to the minister, says: 

Dear Sir: In our very informal conversation yesterday after- 
noon with President Legitime and secretary of foreign affairs, 
Mr. Margron, I noticed that the latter had a totally erroneous 
impression of the proceedings of the 20th instant in connection 
with the American steamer Haytien Republic. 

That vessel was not taken by force, as Mr. Margron seems to 
think. As this misconception of the whole transaction may be 
shared by President Legitime and his cabinet, it seems to me 
that no time should be lost in representing the transaction in its 
true character. 

On our arrival here it was only reasonable on our part to sup- 
pose that the Haitian Government would accept in good faith 
the decision of the President of the United States in the case of 
the steamer and be ready to restore her promptly on that de- 
cision being made known. I went in the Yantic to the inner 
harbor that I might be on the spot myself to see that all due 
and proper forms should be complied with. 

In my letter to you of the 20th it was stated that I was here 
to cooperate with you in obtaining the release of the vessel ; and 
further on I say " to prevent misunderstanding * * * I beg 
you will inform the authorities that an officer of this command 
will be ready to receive the Haytien Republic at 3 o'clock, at 
which time it is hoped the guard will have been withdrawn." 
Not a soul of the Yanti&s crew was allowed to go on board the 
Haytien Republic until the receipt of Mr. Margron' s letter to you 
giving up the vessel. As the Yantic had scant room to turn, a 
small line was attached to the cable of the Haytien Republic and 
another to the Norwegian bark, those two vessels being most con- 
venient for the purpose. This was done to steady the Yantic and 
keep her from swinging about. 

The object of taking the Yantic to the inner harbor were two- 
fold — first, that I might be on the spot to complete the arrange- 
ments and, secondly, that a ship might be there to tow the Hay- 
tien Republic out. This latter duty was saved us through the 
courtesy of the Haitian authorities, who placed the Grande 
Riviere at our service for that purpose. 

Insurrection in Brazil, 1894- 41 

It was my particular care to abstain from any hasty action and 
to receive the vessel at the hands of the Haitian Government in 
accordance with the terms of the decision arrived at by the 
President of the United States. 

This places the affair in a totally different light from that rep- 
resented by Mr. Margron yesterday, and it is due to all con- 
cerned that he should be set right in the matter. 

S. B. Luce, 
Rear Admiral, United States Navy, 
Commanding North Atlantic Squadron. 
(Ibid., p. 263.) 

Later the Secretary of State wrote to the Secretary of 
the Navy : 

Depaetment of State, 
Washington, January 3, 1889. 

Sir: I have the honor to acknowledge the. receipt of your letter 
of 31st ultimo, and of a copy of a communication from Admiral 
Luce of the 21st ultimo, in which he conveys a clear and con- 
clusive report of his action in executing the duty assigned him of 
receiving the steamer Haytien Republic from her captors at 
Port au Prince and restoring her to the possession of her owners 
or their agents. 

The vigor, tempered with high and intelligent discretion, which 
has characterized the action of Admiral Luce in the execution 
of this national duty to American citizens wrongfully deprived 
of their property in the turmoil of political disorder in foreign 
waters is most satisfactory to this department, and it is now 
hoped that the presence of our national vessels in Haitian waters 
may soon be rendered unnecessary. 

I have, etc., T. F. Bayard. 

The Secretary of the Navy. 
(Ibid., p. 249.) 

Brazil. 1894- — In 1894, during the insurrection in Bra- 
zil, American commerce in the harbor of Rio cle Janeiro 
was interrupted and lives and property were endangered. 
Admiral Benham notified the insurgents that he pro- 
posed, while not interfering with legitimate military 
operations, to protect by force, if necessary, American 
interests. Minister Thompson reported: 

The insurgents are denied the right to search neutral vessels 
or to seize any part of their cargoes, even though such cargoes 
should comprise such articles as would in the case of war be- 
tween two independent governments come within the class of 

42 Merchant Vessels and Insurgents. 

merchandise defined as contraband of war. The insurgents in 
their present status would commit an act of piracy by forcibly 
seizing such merchandise. 

He adds that to the best of his information all the foreign 
commanders agree with Admiral Benham and that the effective 
action of last Monday has restored complete tranquillity, broken 
the attempted blockade of commerce and trade, and placed every- 
thing in even motion. (U. S. Foreign Relations, 1893, p. 117.) 

To this Secretary Gresham replied, February 1, 1894: 

Mr. Gresham states that Admiral Benham has acted within his 
instructions, and that it is therefore hoped that Mr. Thompson, 
whose telegram is satisfactory, is in accord with the admiral. 
(Ibid., p. 117.) 

The letter of Admiral Benham to Admiral da Gama on 
January 30, 1894, assumes a more extreme position in 
the second paragraph than that which is now assumed 
in regard to insurgents. 

U. S. Flagship "San Francisco" (Second Rate), 

Rio de Janeiro, Brazil, January 30, 189 If. 

Sir : In reply to your communication of yesterday, which I 
had the honor to receive, asking if my action of the 29th " means 
positive interference in our domestic trouble, or if it only refers 
to the protection of commerce under the American flag," permit 
me to say that a careful perusal of the letters which I have had 
the honor of addressing you would, I think, make this question 
unnecessary, as they all refer to acts of violence and interference 
committed by your orders against American vessels, and of my 
intention to protect these vessels. However, that there may be 
no misunderstanding, I have to say, that in no case have I 
interfered in the slightest way with the military operations of 
either side in the contest now going on, nor is it my intention to 
do so. That is not my mission. My duty is to protect Americans 
and American commerce, and this I intend to do to the fullest 
extent. American vessels must not be interfered with in any 
way in their movements in going to the wharves or about the 
harbor; it being understood, however, that they must take the 
consequences of getting in the line of fire where legitimate 
hostilities are actually in progress. I am not laying down any 
new principle of action. My course rests upon well-established 
principles of international law. 

There is another point which it may be well to speak of now: 
Until belligerent rights are accorded you, you have no right to 
exercise anjr authority whatever over American ships or property 
of any kind. You can not search neutral vessels or seize any 
portion of their cargoes, even though they be within the class 

insurrection in Brazil, 189Jf. 43 

which may be clearly defined as contraband of war during hos- 
tilities between two independent Governments. The forcible 
seizure of any such articles by those under your command would 
be, in your present status, an act of piracy. Regretting that I 
am forced to speak thus plainly, 

I have, etc., A. E. K. Benham, 

Commanding United States Naval Force 

on South Atlantic Station. 

(IT. S. Foreign Relations, 1893, p. 122.) 

Cuban insurrections. — In 1895 three naturalized citi- 
zens of the United States residing in and doing business 
in Cuba requested information as to the protection of 
their property. They addressed the following letter to 
the American consul general at Habana. 

Sancti Spiritus, June 13, 1895. 

Sir: We, the undersigned American citizens and property 
holders in several municipal districts of this island, having received 
intelligence that the insurgents have forbidden the extraction of 
cattle from the farms ; and, furthermore, seeing through the news- 
papers the wanton destruction of property throughout the island, 
with marked tendencies to anarchy, apply to you for information 
on the following points, viz : 

Have we the right to apply to the Spanish authorities for such 
forces as would be required to safely conduct our cattle to the 
nearest market? 

Should the Spanish authorities deny our request, what shall 
we do? 

In what form are we to protest, and under what circumstances 
can we make good our claims to damages? 

We furthermore understand that in certain cases the insurgents 
have threatened to destroy property unless a certain bounty is 
paid. What are we to do in case such a threat is made to us? 

We would be thankful for full information, if possible, through 
the Department of State, on these subjects, and with much re- 
spect, etc., 

Jose Rafael Reyes y Garcia. 
Antonio M. Yznaga. 
Eduardo Alvarez Cerice. 

(U. S. Foreign Relations, 1895, Part. II, p. 1215.) 

The Acting Secretary of State made the following 
reply : 

Department of State, 
Washington, July 1, 1895. 

Sir: Your dispatch, No. 2517, of the 19th instant, has been 
received. You therewith forward copy of a letter received by 

44 Merchant Vessels and Insurgents. 

you from three Cuban landowners, American citizens, and resi- 
dents of Sancti Spiritus, making inquiries concerning the protec- 
tion of their property from seizure or destruction by insurgents. 
In particular the writers state that they have learned that the 
insurgents have forbidden the removal of cattle from the farms, 
and ask if they have the right to apply to the Spanish authorities 
for the protection of their property, in conducting their cattle 
to the nearest market, and, in case of refusal, under what circum- 
stances and in what form they can make protest for damages. 

It is a generally accepted principle of international law that a 
sovereign government is not ordinarily responsible to alien resi- 
dents for injuries that they may receive within its territories 
from insurgents whose conduct it can not control. Within the 
limits of usual effective control law-abiding residents have a 
right to be protected in the ordinary affairs of life and inter- 
course, subject, of course, to military necessities, should their 
property be situated within the zone of active operations. The 
Spanish authorities are reported to be using strenuous endeavors 
to prevent the class of spoliations which the writers apprehend, 
and notification of any particularly apprehended danger from 
the insurgents would probably be followed by the adoption of 
special safeguards by the authorities. In the event, however, of 
injury, a claim would necessarily have to be founded upon aver- 
ment and reasonable proof' that the responsible officers of the 
Spanish Government, being in a position to prevent such injury, 
have failed to use due diligence to do so. 

It is impossible to give more precise instructions upon the 
hypothetical case presented. Should injury be actually suffered, 
and the facts be fully represented, this department would be in 
a position to determine its duty, if anything, in the premises. 
I am, etc., 

Edwin F. Uhl, 
Acting Secretary. 

(Ibid., 1216.) 

The claim, of Rosa GeTbtrunk. — ■ 

In November, 1898, there was a revolution in Salvador and a 
revolutionary force occupied the city of Sensuntepeqne, where a 
quantity of merchandise of the value (in silver) of $22,000 and 
upward, belonging to the firm of Gelbtrnnk & Co., was stored. 
There is no dispute as to the value of these goods or as to the 
fact of their being the property of Gelbtrunk & Co. The soldiers 
of the revolutionary army possessed themselves of the goods— 
looted them, in short — and sold, appropriated, or destroyed them. 
It does not appear that this was done in carrying out the orders 
of any officer in authority or as an act of military necessity, but, 

Case of Rosa Gelb trunk. 45 

so far as it appears, it was an act of lawless violence on the part 
of the soldiery. The firm of Maurice Gelbtrunk & Co. having 
assigned their claim against the Republic of Salvador to the 
present claimant. Rosa Gelbtrunk, the wife of Isidore Gelbtrunk, 
Mrs. Gelbtrunk (who, following the status as regards nationality 
of her husband, was also an American citizen) appealed to the 
Government of the United States to intervene on her behalf in 
claiming indemnity for the property lost. (U. S. Foreign Rela- 
tions, 1902, p. 877.) 

In deciding on this case, referred to arbitration, the 
arbitrators, Henry Strong, chief justice of the Dominion 
of Canada, Don M. Dickinson, of Michigan. David 
Castro, chief justice of Salvador, were unanimous. The 
opinion prepared by Mr. Justice Strong stated : 

The principle which I hold to be applicable to the present case 
may be thus stated: A citizen or subject of one nation who, in 
the pursuit of commercial enterprise, carries on trade within the 
territory and under the protection of the sovereignty of a nation 
other than his own is to be considered as having cast in his lot 
with the subjects or citizens of the State in which he resides and 
carries on business. Whilst on the one hand he enjoys the pro- 
tection of that State, so* far as the police regulations and other 
advantages are concerned, on the other hand he becomes liable 
to the political vicissitudes of the country in which he thus has a 
commercial domicile in the same manner as the subjects or citi- 
zens of that State are liable to the same. The State to which 
he owes national allegiance has no right to claim for him as 
against the nation in which he is resident any other or different 
treatment in case of loss by war — either foreign or civil — revolu- 
tion, insurrection, or other internal disturbance caused by organ- 
ized military force or by soldiers, than that which the latter 
country metes out to its own subjects or citizens. 

This I conceive to be now the well-established doctrine of inter- 
national law. The authorities on which it has been so established 
consist of the writings of publicists and diplomats, the decisions 
of arbitrators — especially those of mixed commissions — and the 
text of writers on international law. 

It is, however, not to be assumed that this rule would apply 
in a case of mob violence which might, if due diligence had been 
used, have been prevented by civil authorities alone or by such 
authorities aided by an available military force. In such a case 
of spoliation by a mob, especially where the disorder has arisen 
in hostility to foreigners, a different rule may prevail. It would, 
however, be irrelevant to the present case now to discuss such a 
question. It therefore appears that all we have to do now is 

46 Merchant Vessels and Insurgents. 

to inquire whether citizens of the United States, in the matter 
of losses incurred by military force or by irregular acts of 
the soldiery in the revolution of November, 1898, in Salvador, 
were treated less favorabJy or otherwise than the citizens of 

To this inquiry there can be but one answer : They were not 
in any way discriminated against, for the legislature of the Re- 
public in providing indemnity for such losses applied the same 
as well to foreigners as to the citizens of Salvador. 

For these reasons I am of opinion that we have no alternative 
but to reject this claim. (Ibid., pp. 877, 878.) 

Bolivia, 1900. — In December, 1900, a body of revolu- 
tionists, organized in opposition to the Bolivian Gov- 
ernment, seized goods on board the steamship Labrea, 
which was sailing with goods for the Bolivian Govern- 
ment to places on the river Acre. The insurance com- 
pany was sued in order to recover the insurance on these 
goods, which in the policy were " warranted free of cap- 
ture, seizure, and detention * * * * piracy excepted." 
The court decided in 1909 that as the goods were not 
seized for private but in " furtherance of a political ad- 
venture" that the act was not piratical. (Republic of 
Bolivia v. Indemnity Mutual Assurance Co. (Ltd.), Law 
Reports, 1909, 1 Kings Bench, p. 785.) 

Haiti, 1902. — A brief statement of action in time of 
insurrection in a case which involved a somewhat ex- 
tended correspondence and considerable exercise of dis- 
cretion on the part of the naval officer in command is as 
follows : 

Embassy of France, 
Manchester, Mass., August 7, 1902. 

I received from the manager of the French Cable Co. at New 
York a telegram saying that the Haitian vessel Crete a Pierrot 
intends to cut the cables of the company. The superintendent of 
the station of the French Cable Co. at Port au Prince has in- 
formed the commander of the American cruiser MacMas of this 

Commander McCrea seems to be disposed to protect the cable 
which lands in Haiti, but he would be glad to receive instructions 
from the Navy Department at Washington on the subject. I 
should be very grateful to you, if you see no objection, if you 
would request the Navy Department to send at once, by cable, 
to the commander of the MacMas the necessary instructions to 

Colombia, 1902. 47 

protect the French cable in Haiti from any attempt at destruc- 
tion, all nations being equally interested in the working of this 


Charge d 'Affaires. 

Department of State, 
Washington, August 11, 1902. 

Sir : I have the honor to inform you that your telegram of the 
7th instant was at once sent to the Navy Department, and that 
that department has instructed the commanding officer of the 
Machias to act in his discretion to prevent any destructive or 
injurious act against foreign interests or property in Haiti not in 
the line of hostilities. 

Accept, etc., Alvey A. Adee, 

Acting Secretary. 
(U. S. Foreign Relations, 1902, p. 417.) 

Colombia, 1902.— In a telegram from Acting Secretary 
of State in 1902 to the United States representative iu 
Colombia it was said : 

Department of State, 
Washington, August 21, 1902. 

Replying to Mr. Hart's telegram of August 21, Mr. Adee states 
that article 8 of the treaty of 1846 stipulates -equitable and suffi- 
cient indemnification ; that the treaty does not stipulate when 
compensation shall be made, but, according to general principles 
of international law, private property is subject to seizure only 
by way of military necessity, and the military commander must 
cause receipts to be given which will serve owner to obtain in- 
demnification guaranteed by treaty, unless compensation is made 
at the time of seizure. 

(U. S. Foreign Relations, 1902, p. 310.) 

United States, 1903.— -The United States in 1903 re- 
jected certain claims of British subjects for loss of prop- 
erty by insurgent action in the Philippines in 1899. 

Secretary Hay, in replying to the letter of the British 
ambassador, says : 

Department of State, 
Washington, January 27, 1903. 
My Dear Mr. Ambassador: I have received your personal note 
of the 31st ultimo, with inclosure, relating to certain claims 
of British subjects which have been brought to this Government's 
attention from time to time, and which arose out of the opera- 
tions during the recent War with Spain. 

48 Merchant Vessels and Insurgents. 

The department concurs in the expression contained in your 
note that " not the least of the calamities resulting from a state 
of war is the loss caused thereby to the subjects or citizens of 
neutral powers possessing property or engaged in business in the 
affected area." The losses sustained by His Majesty's subjects 
mentioned in the memorandum accompanying your note come 
within the category of cases above described, in which, as you 
say, " It often happens that the destruction of that property or 
damage to that business is a matter of military necessity to one 
of the belligerents." And such destruction may sometimes be 
wantonly inflicted by insurgents, which, though equally deplorable, 
does not create liability on the part of the titular government in 
the circumstances existing in connection with said claims. 

These claims appear to the department to be quite different in 
legal character from those which arose in behalf of American 
citizens expelled by the British authorities from South Africa, 
and for which His Majesty's Government graciously made com- 
pensation. However much I might be personally disposed to 
recommend a compensation in these cases as a matter of grace 
and favor, as is suggested in your note, I am persuaded that such 
recommendation to Congress would be fruitless, in view of the 
adverse report of the Senate Committee on Foreign Relations in 
the mentioned claim of William Hardman, and in view of the 
further fact that the Government of the United States would 
probably be reluctant to set a precedent for the making of com- 
pensation for the losses of property caused by the action of in- 
surgents beyond the control of the military authorities of the 
United States, and for whose action the latter was not morally 
culpable. Such a precedent, if set, would doubtless be followed 
by the presentation of numerous other large claims for compen- 
sation for property destroyed by acts of insurgents. 

The claim of Mr. J. Walter Higgin, now presented for the first 
time, is of the same essential legal character as those which have 
already been rejected by the department. 

I am, etc., John Hay. 

(U. S. Foreign Relations, 1903, p. 482.) 

Disturbances in Santo Domingo, 1905. — In the latter 
part of the year 1905 there was an active opposition to 
the established Government of Santo Domingo. The 
authorities of Santo Domingo, fearing that the revolu- 
tionists might be successful to such an extent that they 
would attack the customhouse, requested the American 
minister to ask that a ship of war be sent. Accordingly 
the American minister cabled for the warship and re- 
ceived reply : 

Santo Domingo, 1905. 49 

Washington, November 7, 1905. 
Dawson, American Legation, Santo Domingo: 

Warship ordered to Macoris. If marines required to restore 
order, there should be first an express and clear request from the 
Dominican Government that they be landed for temporary pro- 
tection of life of American citizens, which Dominican Government 
declares itself for time being unable to protect. Upon such re- 
quest necessary force will be landed. Naval officers will be in- 
structed to act upon notice from you that sueh assistance has 
been requested. An immediate understanding on this subject 
with the Dominican Government seems important. 


Minister Dawson says of his further conduct : 

Upon receiving this telegram I called upon the minister of 
foreign affairs and told him of its contents. He said that he 
had always understood that the primary duty of protecting Ameri- 
can citizens in the Republic, including those who are employed by 
his Government to collect its customhouse revenues, falls upon 
the Dominican Government. In view of that duty and of your 
telegram to me, it remained clearly understood that the Ameri- 
can Government would not land armed forces unless the Domini- 
can Government, finding itself unable to protect the lives of 
American citizens employed in its customhouses, or elsewhere, 
should request such landing. Up to the present time the Do- 
minican Government has maintained order, and its authority 
in the city of Macoris and its immediate vicinity, and at all the 
other ports of entry, with the exception, perhaps, of Monte Christi, 
and he hoped would continue to be able so to do. He had sug- 
gested, not the present landing of marines, but only the presence 
of a ship in the neighborhood, so as to be prepared for prompt 
action in the contingency of a sudden reverse to the Government 

I thereupon telegraphed you as follows: 

Santo Domingo, November 8, 1905. 
Secretary of State, Washington: 

I have reached perfect understanding with the Dominican Gov- 
ernment in accordance with instruction your cipher telegram of 
this morning. Macoris quiet in the city. No further news from 
the interior. Mere presence of a United States vessel probably 
will be sufficient. 


On the 10th the U. S. S. Denver reached Macoris, and on the 
same day the Olympia, with Admiral Bradford on board, anchored 
at this port. Since that time matters have outwardly continued 
in statu quo in the cities of Macoris and Santo Domingo. (U. S. 
Foreign Relations, 1905, p. 405.) 
60252—12 4 

50 Merchant Vessels and Insurgents. 

On December 6, 1905, the American Secretary of State 
sent further instructions : 

Dispatches received here by Navy Department from Bradford 
and by Joubert from Vasquez represent serious disturbance. The 
President wishes you to urge amicable settlement of differences in 
Government. There is good reason to expect early action on treaty 
here. We can not take any part in differences between factions 
or officers of Dominion Government. No troops are to be landed 
except when absolutely necessary to protect life and property of 
American citizens, and if landed they must confine themselves 
strictly to such protection, which will extend to the peaceable per- 
formance of duty by the Americans who are collecting revenue 
in the customhouses so long as the Dominican Government desires 
them to continue that service. If Dominican Government de- 
termines to end the modus vivendi and the collection of duties 
by Americans nominated by President of the United States, protec- 
tion will extend to their safe withdrawal with their property. 

Notice of such termination should be given formally. We are 
about to withdraw several of our ships, which will return to 
United States with Admiral Bradford. 


(Ibid., p. 408.) 

Cuba, 1906. — The following telegram sent by Mr. 
Sleeper, charge d'affaires in Cuba, to the Secretary of 
State of the United States and the reply of the Secretary 
show the attitude of the United States toward protection 
of property of nationals : 

Habana, August 28, 1906. 

In all cases of damage, destruction, or seizure of property 
against the will of the owner by agents of the Government or other 
parties, a complaint stating the facts and containing a list of 
the property so damaged, destroyed, or seized should be made to 
the court having jurisdiction, a copy of said complaint being 
forwarded at the same time to this legation. Wherever pos- 
sible a statement in case property is damaged or destroyed and a 
receipt in case property is appropriated, subscribed to (by the 
person or persons responsible for such damage or destruction or 
making such appropriation should be procured. (U. S. Foreign 
Relations, 1906, Pt. I, p. 457.) 

The Secretary approved Mr. Sleeper's action in a tele- 
gram of August 29, 1906 : 

Department of State, 
Washington, August 29, 1906. 
Mr. Adee informs the legation that the proposed advice to 
parties despoiled by insurgents has the department's approval. 
Action Mercedita case also approved. (Ibid., p. 460.) 

Colombia, 1907. 51 

Colombia, 1907. — In a report upon the claim of Mr. 
Deeb, the American charge at Bogota showed that Co- 
lombia still maintained that "there are no grounds for 
any recognition whatesoever on account of levies caused 
by the revolutionaries." The letter from the charge 
and the judicial decision are as follows : 

American Legation, 
Bogota, September 2, 1907. 

Sir : Referring to my No. 139, of December 29, 1906, relative to 
the claim of Richard A. Deeb, an American citizen, against the 
Government of Colombia for horses, mules, cattle, and. mer- 
chandise taken from him by federal and insurgent troops during 
the revolution that existed in Colombia in the years of 1901 and 
1902, in which dispatch I stated that I had taken up with the 
foreign office the settlement of that claim, I have the honor and 
pleasure to report that through my persistent efforts the Govern- 
ment has now issued a resolution allowing the claim of Mr. Deeb 
in the sum of $25,009 gold, payable in foreign bonds, in accord- 
ance with the judicial decision pronounced by the examiner of 
the second section of the department of foreign affairs and with 
the concurrence of the council of ministers, a copy of which, 
clipped from the Diario Oficial of this city of to-day, I inclose 
in duplicate, as well as a translation of the same, also in 

Mr. Deeb claimed indemnity in the sum of $72,471.12 gold. 
$42,000 of which being, as was alleged, for levies caused by revo- 
lutionaries, and was disallowed, the Government holding that it 
did not recognize claims for damages caused by the insurgent 
forces; and of the remainder, namely, $30,471.12, the sum of 
$5,402.12 was disallowed for lack of proper evidence, resulting 
in a balance in Mr. Deeb's favor of $25,069, which that gentleman 
has accepted in full settlement of his claim against the Govern- 
ment of Colombia. 

It is gratifying to me to add that, as with the two other claims 
against the Government of Colombia recently reported to the de- 
partment (in dispatches Nos. 213, 217, and 225), and which I 
have had the satisfaction of bringing up to the point of settle- 
ment, the payment of the claim of Mr. Deeb was arranged by me 
with perfect harmony and attended by the exhibition of the 
greatest courtesy on the part of the officers of the Government. 

Mr. Deeb, a Syrian by birth, although an American citizen by 
naturalization, whom I found to be a man of superior intelligence 
and exceptional refinement, informed me that it is his intention 
to return within a few months to the United States, where he 
would again take up his permanent residence. 

I have, etc., % Wm. Heimke. 

(U. S. Foreign Relations, 1907, Pt. I, p. 290.) 

52 Merchant Vessels and Insurgents. 

[ Inclosure — Translation. ] 

[Extract of the judicial decision in the claim of Richard A. Deeb. an 


Under date of the 2Sth of October, 1901, Mr. Richard A. Deeb 
presented to the ministry of war a memorial introducing his 
claim. Subsequently, on the 27th of July, 1906, it was passed 
to this department for its examination and decision. 

He claimed $72,471.12 gold. 

In this amount there are included $42,000 for levies caused by 
the revolutionists. 

The record having been examined, the ministry found it' in 
conformity with law 27 of 1903 and its organic decree, and pro- 
ceeded to pronounce its decision on the 10th of August, 1907, 
which, in its determinate quality and with the concurrence of the 
council of ministers, says: 

" First. There are no grounds for any recognition whatsoever 
on account of levies caused by revolutionaries, as defined in ar- 
ticle 3 of law 27 of 1903. 

" Second. The only and definitive indemnification adjudged to 
Mr. Richard A. Deeb, American citizen, as the sum total of the 
present claim, is the amount of twenty-five thousand and sixty- 
nine dollars ($25,069), payable in foreign bonds. 

" Ordered to be entered in the register and published in the 
Daily Official Gazette ; and if the result is accepted, an authentic 
copy hereof is to be sent to the ministry of the treasury for its 
action, and the record is to be filed. 

" For the minister, the subsecretary, 

" Francisco Jose Urrutia." 

China, 1911. — The following correspondence in regard 
to the troubles in China in consequence of the change in 
the form of government is a recent example of protec- 
tion afforded to foreign trade. 

The United Provinces of China, 
Provisional Government, Foreign Office, 

Shanghai, November 27, 1911. 
Sir : It has been reported to this Government that munitions of 
war and other contraband goods are now frequently conveyed by 
foreign and other vessels, and at the request of the military com- 
mander, Mr. Chen, I have the honor to inform you that this 
Government will send gunboats to cruise the waterways at or 
about Woosung and Kiang-yin Forts for the purpose of boarding 
suspected foreign and native merchant steamers for contraband' 
of war, and that if any should be discovered and seized they will 
be taken to the prize court for trial before confiscation. 

As occasion may arise when it may be found necessary to fire 
upon the warships of our enemies 'from the Woosung Forts, we 

China, 1911. 53 

would request that foreign vessels, as well as all foreign merchant 
ships, should no longer anchor within the range of firing from 
these forts, and that at night they should not pass the Woosung 
Forts, but if they should be compelled to do so in case of necessity, 
a few hours' notice in advance should be given to the officer in 
charge of the forts. I shall feel obliged if you will request your 
colleagues to communicate with their admirals about the matter. 
Sir, your obedient servant, 

Wit Ting Fang. 
S. Siffeet, Esq., 

Consul General for Belgium and Senior Consul, Shanghai. 

American Consular Service, 
Shanghai, China, December 7, 1911. 
Rear Admiral J. B. Murdock, 

Commander in Chief, United States Asiatic Fleet, Shanghai. 
Sir: I have the honor to append a letter addressed to the 
Senior Consul by Mr. Wu Ting Fang under head, " The United 
Provinces of China, Provisional Government, Foreign Office, dated 
December 4, 1911 : 

Sir: With reference to my letter of November 27, I beg to 
say that this Government finds it necessary to send officers to 
board suspected foreign and native merchant vessels for contra- 
band of war when passing through their territory. 
I have the honor to be, your obedient servant, 

Wu Ting Fang. 

I may add that at a meeting of the consular body December 6 
the decision was merely to acknowledge the receipt of Mr. Wu 
Ting Fang's letter of November 27, noting that in taking such 
action as he indicates, he and his associates proceed at their own 

I further inform you that I have personally sent copy of your 
letter of December 2 to me to Mr. Wu Ting Fang. 

In have the honor to be, sir, your obedient servant, 

Amos P. Wilder, 

Consul General. 

United States Asiatic Fleet, 
U. S. S. " Rainbow," Temporary Flagship, 

Shanghai, China, December 2, 1911. 
Sir : Referring to the letter from Mr. Wu Ting Fang, forwarded 
by you, I beg to state that as the United States has not accorded 
belligerent rights to the revolutionists in China, I should be un- 
able to acquiesce in the seizure by them of American vessels under 
any pretext whatever. 

54 Merchant Vessels and Insurgents. 

In view of the recognized position of Shanghai as a great center 
of international commerce, and of the right to trade there secured 
by treaties with the titular Government, the request of Mr. Wu 
Ting Fang, that foreign vessels should not anchor in the usual 
anchorage on account of being in the line of fire of the forts, 
appears to needlessly entail inconvenience on American shipping. 
In the case of actual hostile operations every precaution would of 
course be taken to prevent any inconvenience to the combatants, 
but at other times United States vessels should be allowed to 
enter and leave Shanghai, and carry on their trade in the usual 
manner. The fact that, to the best of my knowledge, there are 
no men-of-war in China bearing the flag of the titular Government, 
effectually removes the necessity of the Woosung Forts having 
its line of fire cleared for hostilities against nonexistent foes. 
Very respectfully, 


Rear Admiral, U. 8. Navy, 
Commander in Chief, U. 8. Asiatic Fleet. 
American Consul General, 

American Consulate General, Shanghai, China. 

Conclusions. — From the orders, precedents, and opin- 
ions it is evident that foreign States should refrain from 
interference in domestic political struggles. It is, how- 
ever, incumbent upon the naval forces to afford such 
protection to the property and persons of nationals of 
their own country as may be possible without intervening 
in the insurrection. They are properly authorized to 
prevent wanton destruction of the property of nationals 
or other unnecessarily severe treatment which is not inci- 
dent to the actual conduct of the hostilities. 

Action by insurgents in the line of restraint of the 
freedom or restriction of the right to exercise ordinary 
privileges possessed by foreigners must be confined to 
immediate requirements. Such action can not be taken 
on the basis of some contingent danger which may or 
may not materialize. 

As the merchant vessel of the United States has on 
board war material, the insurgents would, under the 
accepted principles, have the right to keep it from reach- 
ing their domestic enemy. This is a right of prevention 
and not a right which would authorize the insurgents to 
seize the war material for themselves. As Mr. Hay 
said in 1902 : 

Solution. 5 5 

No right of confiscation or destruction of foreign property In 
such circumstances could well be recognized, and any act of 
injury so committed against foreigners would necessarily be at 
the risk of the insurgents. 

There is, therefore, a question as to where the line of 
right would run. It certainly would not allow wanton 
destruction or seizure. It would permit the insurgents 
to take the action necessary to protect themselves within 
the area over which they have authority. 

The commander of the cruiser of the United States 
should endeavor to protect the rights of nationals of the 
United States. At the same time the interests of the 
United States may be more important than those of an 
individual. If the war material is brought to the port 
simply as a commercial venture, it may be easy to sell 
the material to the insurgents. If it is brought with 
view to aid the other party, the insurgents may properly 
demand that it be taken away or turned over to them on 
payment of adequate compensation. 

Solution I (c). — The commander of the cruiser of the 
United States should inform the master of the merchant 
vessel that, while he would endeavor to prevent any 
wanton seizure of his cargo, he would not interfere with 
proper action which the insurgents might take to pre- 
vent the war material from reaching their opponents. 


(a) The commander of the cruiser of the United 
States should, if possible, afford the merchant vessel the 
necessary protection from visit and search. 

(b) If the only reason for the seizure of the merchant 
vessel is that it was about to enter a port which the in- 
surgents have declared blockaded, the commander should 
grant the master's request, though the commander might 
require that the merchant vessel proceed to some other 

(c) The commander of the cruiser of the United 
States should inform the master of the merchant vessel 
that, while he would endeavor to prevent wanton seizure 
of his cargo, he would not interfere with proper action 
which the insurgents might take to prevent the war ma- 
terial from reaching their opponents. 

Situation II. 


There is war between X and Y. All other States are 
neutral. Airships and balloons are in common use. 
State X has not signed the convention prohibiting the 
launching of projectiles from balloons. 

(a) X brings a balloon to State Z and fills it with gas 
preparatory to a flight with view to destroying a part 
of the fleet of Y by dropping explosives from above. 
The authorities of Y protest that this is a violation of 
neutrality. What action should be taken ? 

(b) X so maneuvers a balloon that if it is shot at, the 
projectile will fall within the territory of State B. 
What may Y do? 

(c) An air craft of State C flies over State X in direc- 
tion of State Y and easily discerns the location of the 
naval and military forces of State X. 

What action may State X take if the air craft land on 
its territory ? 

What may be done if it does not land ? 

(d) A fleet of Y is maintaining an effective blockade 
before port O of State X. An aeroplane apparently 
from a neighboring neutral State flies over the blockad- 
ing line, enters port O, lands, returns to the neutral State 
and later on a flight in another direction falls within 
the three-mile limit of State Y. The aeroplane and 
occupants are picked up by a vessel of the blockading 

- How should the aeroplane and occupants be treated 'i 

(e) Would the treatment be different if they were 
picked up from the high sea ? 

(/) Would the treatment be different if they were 
picked up within neutral waters ? 


(a) The protest of belligerent State Y should be 
heeded by neutral State Z. 

(b) Y may take any action which would not involve 
violation of neutral jurisdiction, as would be the case if 
the projectile should fall in the territory of State B. 


Notes. 57 

(c) When the neutral air craft lands within belliger- 
ent territory it may be detained or other measures may 
be taken to prevent the disclosure of military move- 

While the neutral air craft is still in the air, the bellig- 
erent may take such measures as possible to prevent dis- 
closure of his military movements. 

(d) If the aeroplane is neutral it should be sent to a 
prize court for adjudication. 

If the aeroplane is belligerent it may be treated as an 
enemy vessel taken under similar conditions. 

(e) The treatment would be the same if picked up 
from the high sea. 

(/) The belligerent would have no military rights 
over an aeroplane picked up in neutral waters. 


Early recognition of military value of balloons. — Dur- 
ing the last quarter of the eighteenth century the mili- 
tary value of balloons was recognized and various ex- 
periments were made. Giroud de Vilette, about 1783, 
wrote that from the beginning of his experiments he was 
convinced that the balloon would be an economical and 
very useful instrument for observing the position, ma- 
neuvers, march, and disposition of the enemy's forces, 
and for signaling this information to his own troops. 

A balloon was used for observation purposes at the 
battle of Fleurus June 26, 1794. Balloons at the siege 
of Venice in 1849 were not found satisfactory for the 
discharge of projectiles. Balloons were used to a con- 
siderable extent during the Franco-Prussian War, and 
von Moltke had confidence in the military usefulness of 
air craft. 

The captive balloon used particularly for observation 
and signaling purposes offers few problems as to its treat- 
ment in time of war, because the identity of the party 
which it serves or may serve is ordinarily easily deter- 
mined. Kites and other captive air craft are subject to 
the same limitations. 

Free balloons offer a greater number of problems be- 
cause it is frequently difficult to determine whether there 

58 Air Craft in War. 

is any element of hostility in a balloon which may be 
passing over. During the Franco-Prussian War persons 
who had passed the German frontier in balloons were 
imprisoned and severely treated, and a threat was made 
that they would be regarded as spies. None were, how- 
ever, executed, and a few years later it came to be gen- 
erally recognized that balloonists under such conditions 
were liable to be made prisoners of war, but were not 
liable to more severe treatment. 

Hague conventions. — The Hague convention, with 
respect to the Laws and Customs of War on Land of 
1899, in article 29, relating to spies, said : 

An individual can only be considered a spy if, acting clan- 
destinely or on false pretenses, lie obtains or seeks to obtain in- 
formation in the zone of operations of a belligerent with the 
intention of communicating it to the hostile party. 

Thus soldiers not in disguise who have penetrated into the 
zone of operations of a hostile army to obtain information are 
not considered spies. Similarly the following are not considered 
spies : Soldiers or civilians carrying out their mission openly 
charged with the delivery of dispatches destined either for their 
own army or for that of the enemy. To this class belong like- 
wise individuals sent in balloons to deliver dispatches, and gen- 
erally to maintain communication between the various parts of 
an army or a territory. 

This article was reaffirmed in the convention upon the 
same subject at The Hague conference of 1907. A limited 
use of balloons is thus permitted. 

The discharge of projectiles from balloons was pro- 
hibited for a term of five years from 1899 by a declara- 
tion agreed upon at the First Hague Peace Conference. 
The prohibition was extended to analogous methods of 
discharge. When this convention came up for renewal 
at the Second Hague Conference in 1907 it was found 
that the development of the service of aerial navigation 
had made such progress since 1899 that States which ap- 
proved the declaration of 1899 were not prepared to re- 
new their adherence. Certain States, however, favored 
it, and the declaration was again submitted for approval, 
though only about one-half the States represented at the 
conference signed at the time. 

Hague Conventions. 59 

A restriction on the use of balloons for bombardment 
of open places was, however, introduced in the Laws and 
Customs of War on Land. Article 25 of this conven- 
tion of 1899 provided: 

The attack or bombardment of towns, villages, habitations, or 
buildings which are not defended is forbidden. 

Article 25 of the same convention of 1907 provided: 

The attack or bombardment by any means whatever of towns, 
villages, habitations, or buildings which are not defended is 

The introduction of the clause by any means whatever 
is significant, but it must be observed that the prohibition 
extends only to places that are undefended and does 
not apply to fortified or defended positions. Accord- 
ingly, so far as the conventional laws of war are con- 
cerned, there is no prohibition of the use of balloons or 
other air craft for purposes of observation, scouting, and 
the like at any point, though doubtless neutrals have the 
right to regulate the use of the air space above their 
territories, and to exclude air craft which would use that 
air space for hostile purposes. There is no conventional 
prohibition of the use of air craft for the bombardment 
or attack upon fortified or defended places. The propo- 
sition of Lord Reay ; of the British delegation to the 
Second Hague Conference in 1907 to the effect that the 
prohibition of aerial warfare and the restriction of war- 
fare to land and sea would be a step in the direction of 
limitation of armaments did not meet with enthusiastic 

Changed conditions since 1907. — The discussion at The 
Hague conference in 1907 and elsewhere at about the 
same time showed that on the part of many states the 
willingness to put restrictions on the use of air craft in 
time of war was due to the belief that they could not be 
effectively controlled. Since 1907 the progress in 
methods of aerial navigation has been so great that the 
conditions are now entirely changed. Air craft ascend 
to heights that were thought impossible, make flights 
against contrary winds, cross channels and seas, and go 
over mountains with such ease as to disturb well matured 

60 Air Craft in War. 

war plans, are launched from and light upon decks of 
war ships, and in fact have become an agency which must 
be seriously considered in time of war. 

The opposition to the use of air craft which was com- 
mon before 1907 often had as its basis the contention 
that the use of such means in war would be at too great 
a risk to those who were not directly concerned in the 
war. It was maintained that the noncombatant popula- 
tion and property would be unduly endangered by the 
discharge of projectiles from balloons. The dirigibility 
of air craft recently constructed has removed many of 
these objections. 

Tn case of a battle on the high sea between two fleets 
many of the objections to the use of air craft for the 
discharge of projectiles and explosives would not hold to 
the same degree as in land warfare. 

The amount of goods which may be carried in an air 
craft at present is not large, but the risk to the belliger- 
ent is not always determined by volume. The character 
of the goods may be the essential point. Information 
may easily be carried which may determine the issue of a 

While there has developed a considerable opposition 
to the exercise by air craft of ordinary war rights of at- 
tack and defense by means of projectiles it has been gen- 
erally recognized that the belligerent must be able to use 
such force as he possesses against air craft which serve 
as scouts or may otherwise afford information to the 
enemy which may be of vastly greater importance to 
the enemy than any amount of material goods. The 
nationality of such air craft may be of importance for 
the court, but for the commander of the forces the main 
object is to prevent the furnishing of information which 
may defeat or upset his plans. 

Position of France, 1907. — M. Renault, of the French 
delegation to the Second Hague Conference, speaking of 
the discharge of projectiles from balloons or other air 
craift, said: 

Peu irnporte la mode d'envoi des projectiles. II est licite 
d'essayer de detrnire un arsenal, on une caserne, qne le projectile 

Position of France, 1907. 6 1 

employe dans ce but provienne d'un canon or d'un ballon ; il est 
illieite d'essayer de detruire un hopital par un procedt couime par 
l'autre. C'est la\ l'klee essentielJe a laquelle nous esLimons que 
Ton doit s'arreter. Le probl£me de la navigation aerienne fait de 
tels progres qu'il est impossible de prevoir ce que l'avenir nous 
reserve a ce sujet. On ne peut done legiferer en connaissance 
de cause. On ne peut s'interdire d'avance la faculte de pro- 
fiter de nouvelles decouvertes qui ne toucheraient en rien an 
caractere plus ou moins humanitaire de la guerre, et qui permet- 
traient a un belligerant d'exercer une action efficace contre son 
adversaire tout en respectant les prescriptions du Reglement de 
La Haye. (Deuxieme Conference Internationale de la Paix, 
Tome III, p. 152.) 

The rapid development of aerial navigation has shown 
the wisdom of M. Renault's position in 1907. The in- 
creasing range of flight of air craft that are under control 
of the navigators has changed the problem of aerial war- 
fare. Aerial corps in some form are now common ad- 
juncts of military forces. The predictions of a few years 
ago in regard to the use of the air by man are in many 
respects more than realized. How far the use of air 
craft in war may be restricted by conventional agreement 
remains undetermined. Precedent seems to show that 
states are inclined to use against their enemies such force 
and such agencies as are under their effective control so 
long as these are not from their nature repugnant to the 
sense of humanity. Attempts were made to prohibit the 
use of torpedoes, submarine boats, and in earlier days 
firearms. In the actual effect of a projectile there may 
be little difference when it is fired from a gun several 
miles distant so as to fall within a certain area or 
dropped from an air craft a few hundred feet above the 
area. In firing upon air craft the motion of the target 
may be in any direction in space, while in a naval vessel 
the motion of the target is in the main upon a plane. 

These new conditions of possible warfare show that the 
rules for warfare on land and on sea may not be ade- 
quate for the regulation of conduct when the extended use 
of the air is involved in hostilities. The changed attitude 
toward aerial warfare was shown in the difference in 
opinions of delegates to The Hague conference in 1899 
and in 1907. 

62 Air Craft in War. 

As Dr. Alex. Meyer, of Germany, says, in 1899 men 
were willing to prohibit the discharge of projectiles from 
balloons for a limited period, because it was felt that the 
lack of control of the balloon made it a cause of unneces- 
sary danger if its use should be unrestricted. With the 
development of means of control of balloons and the ad- 
vance in construction of dirigible air craft many of the 
reasons for the restriction of their use in war have disap- 
peared. ] 

(Die Luftschiffahrt in kriegsrechtlicher Beleuchtung, 
p. 13.) 

Aerial navigation conferences. — The aeronautical con- 
gress held at Nancy from September 18 to 24, in 1909, 
expressed the wish : 

1. Que les Etats, renongant aux mesures prohibitives, s'entend- 
eiit pour reglementer la circulation aerienne dans un sens liberal 
protegeant leurs droits de defense par toutes les verifications 
utiles, en assurant l'observation de leurs lois douanieres par des 
mesures appropriees h la matiere, comme il a ete fait pour les 
vehicules automobiles. 

Le Congres reconnait que la matriculation des a£ronefs serait 
la meilleure et peut-etre la seule maniere d'assurer l'efficacite d'une 
reglementation liberale. 

2. Qu'en vue d'eviter les accidents et collisions, la circulation 
des navires aeriens soit l'objet d'une reglementation internationale 
etablie en s'inspirant, autant que possible, du reglement interna- 
tional, depuis longtemps eprouve\ relatif aux abordages en mer, 
et en tenant compte des regies dej& pratiquees dans la navigation 

3. Que, en raison de l'importance des connaissances meteoro- 
logiques pour la navigation aerienne, la meteorologie prenne une 
place tou jours plus considerable dans l'enseignement. 

(Revue Juridique Internationale Aerienne, l ere Annee, p. 33.) 

Opinion of Dr. Hazeltine. — Dr. Harold D. Hazeltine, 
of Cambridge University, in lectures delivered late in 
1910 and recently printed, touched upon some of the 
phases of aerial jurisdiction in time of war. His views 
may be stated somewhat in extenso in his own words : 

In considering the rules of international law in times of war 
it is important to have clear ideas as to the aerial space that 
can legally serve as the theater of war and the base of warlike 
operations. It is admitted by all that the aerial space above the 

Opinion of Dr. Hazeltine. 63 

territory and territorial waters of belligerents and also the aerial 
space above the high seas will in the future be legally the proper 
space for belligerent activities. A more difficult question arises 
with reference to the aerial space above 'the territory and terri- 
torial waters of neutrals. If the theory that the air is completely 
free be adopted, one would necessarily be obliged to admit that 
the entire aerial space above neutrals should also fall within 
the field of warlike operations. So, too, if one adopted the view 
that the territorial State has only a limited zone of protection 
above its territory, or even if the territorial State had only a 
limited zone of sovereignty, the logical conclusion would be that 
all the upper strata of the air space above the neutral's territory 
should be a legitimate field for the operations of the belligerent 
powers. But, so far as I know, all the adherents of the freedom- 
of-the-air position do not take this last logical step in their 
argument. They admit that the aerial space above neutrals 
should not serve as a space for the carrying on of hostilities by 
the belligerents. This admission on the part of the adherents 
of the freedom doctrine is a most important one; and, strictly 
speaking, I can not see in principle why they should not also 
admit the same considerations to apply in times of peace as in 
times of war. But this, of course, they do not admit! On the 
doctrine of the territorial State's full right of sovereignty in 
the entire air space above its territory and territorial waters, 
it is quite clear that this entire neutral air space could never 
serve as a space for actual hostilities between belligerents. In 
my opinion this latter is the sound view. 

But although hostilities can not actually be carried on in 
neutral aerial space, a further question arises as to whether this 
neutral air space should be in other ways open to the use of 
belligerents. An examination of the present rules of maritime 
international law will assist us to an answer. Our fundamental 
question will be whether present rules of maritime international 
law should be adopted for future aerial international law. Present 
maritime international law lays down certain very important pro- 
visions favoring belligerents. It is not considered a violation 
of neutrality if a belligerent sea war vessel simply passes through 
the territorial waters of neutrals. So, too, the entry into neutral 
ports is not viewed as a breach of neutrality in case the entry is 
made for the purpose of obtaining provisions or of carrying out 
necessary repairs. Should these same principles apply m aerial 
international law? 

The fact that territorial waters are in a sense a part of the 
sea, viewed as an international highway, lies perhaps at the basis 
of the rule that belligerent war vessels should have the right of 
passage through neutral territorial waters. Probably a distinc- 
tion could be drawn between neutral territorial waters and the 

64 Air Craft in War. 

neutral air space above these territorial waters, for it would 
undoubtedly be easy for an air vessel to pass through this narrow 
stretch of neutral aerial space into the air space over the neutral 
territory itself. The coast line itself acts as a natural and im- 
passable barrier to sea vessels, while the invisible aerial frontier 
offers no such actual check. But despite this difference as regards 
natural conditions belligerent air vessels might well be permitted 
to pass through this narrow neutral aerial zone just above the 
coastal waters themselves. 

If you think for a moment of the aerial space above the neutral 
territory itself, you will see that the rule to be applied here should 
be very different. Probably future international law will com- 
pletely prohibit any passage of belligerent air vessels through the 
air space above the neutral territory itself. Certainly the same 
reasons for the present rules that prohibit the passage of bellig- 
erent troops across the territory itself should apply equally to the 
passage of belligerent aerial craft through the air space above 
that territory. 

Admitting, then, that belligerent aerial craft should probably, 
on principle, be allowed passage through neutral air space above 
the neutral territorial coastal belt of water, the further question 
arises as to whether belligerent air vessels should be permitted 
actually to enter neutral harbors for purposes of asylum. Should 
they be permitted thus to enter for purposes of revictualing and 
for carrying out necessary reparations? As the sea itself is a 
highway for all nations, these privileges accorded to belligerent 
sea war vessels in neutral ports certainly seem to be based upon 
sound sense. Although one can conceive of various differences 
in detail as between the entry of belligerent sea vessels and bel- 
ligerent air vessels, nevertheless it would seem just to accord 
the same privileges to the one class of vessels as to the other. 
Undoubtedly difficulties would arise in carrying out this principle, 
and the matter will require the most serious attention of inter- 
national lawyers. It will be necessary, for example, definitely to 
determine how long the air vessel should remain in the neutral 
port, and it will be necessary to insure the strict observance of 
impartiality on the part of the neutral State itself. (H. D. 
Hazel tine, The Law of the Air, pp. 13G-140.) 

French opinion in 1910. — The opening words of M. 
Millerand, the French minister of public works, on May 
18, 1910, at the International Conference upon Aerial 
Navigation show the rapidity of change in subjects which 
engage international conferences. He said : 

Messeurs, Huit mois ne se sont pas ecoules depuis que j'avais 
l'honneur, ici meme, de cloturer les travaux de la premiere Con- 
ference internationale sur la circulation des automobiles, et je 

French Opinion in 1910. 65 

prends aujourd'hui la parole pour souhaiter la bienvenue, au 
nom du Gouvernement de la Republiqne, aux mernbres erninents 
de la premiere Conference internationale de navigation aerienne. 
(37 Clunet. J. D. I. P., 987.) 

The French Government presented to this conference 
a series of propositions as bases for discussion. These 
prescribed the method of determining the nationality 
and identity of the airship, for licensing aerial pilots, 
for general prohibition of the carriage of arms, explo- 
sives, photographic and radiotelegraphic apparatus; for 
general liability to local authorities; that military and 
police airships could cross the frontier only after per- 
mission, and that other public airships should be assimi- 
lated to private airships, though no airship should enjoy 
exterritoriality. The problems before this conference 
were not settled, and adjournment was taken to Novern- 
ber, 1910, but at this time some powers were unwilling 
to participate, and adjournment sine die took place. 

The propositions which had been presented to the 
Institute of International Law in April, 1910, were 
placed before this conference. That of M. Fauchille 
said : 

Art. 7. La circulation aerienne est libre. Neaninoins les Etats 
sous-jacent gardeht les droits necessaires a leur conservation, 
c'est-a-dire a leur propre securite et a celle des personnel et 
des biens de leurs habitants. 

He also proposed in regard to airships that they be 
divided into public and private, and that the public air- 
ships might be military or civil. Each should have a 
nationality and identity, which should be made known. 
Airships might be excluded from certain zones, as from 
that of regions of fortifications, which regions should 
be made known. Navigation of the air above unoccupied 
territory and above the open sea was to be free. In 
international navigation dangerous articles and prohib- 
ited goods were not to be carried on airships. Acts on 
board the airship were to be within the jurisdiction of 
the State to which the airship belonged, while acts taking 
effect outside the airship are under jurisdiction of the 
60252—12 5 

66 Air Graft in War. 

State within which the airship may be when the act 
takes places. Public airships would, so far as possible, 
be exempt from local jurisdiction. (17 Revue Droit In- 
ternational Public, p. 163, ' Mars- Avril, 1910.) 

M. von Bar also submitted a proposition to the in- 
stitute which came before the conference. He considered 
airships under jurisdiction of their own State so long 
as they remained in the air, though liable to the ter- 
ritorial law for any act that might take effect outside 
the airship. When it is not clear whether the act is 
criminal or civil, the law of the State of the airship 
prevails. The propositions of MM. Fauchille and von 
Bar were in many other respects supplementary. Both 
show how the agreement upon principles of aerial juris- 
diction is progressing. 

The First International Juridical Conference for the 
Regulation of Aerial Navigation held at Verona, from 
May 31 to June 2, 1910, adopted resolutions looking to 
the approval of much of the work of the Paris Inter- 
national Conference on Aerial Navigation. It main- 
tained that the method of establishing the nationality 
of airships should be clearly defined, inclining to the po- 
sition that the nationality of the owner should determine 
the nationality of the airship, that the airship would be 
liable for damage caused bj landing, and that landing 
places might be prescribed. The conference regarded 
the aerial space above the open sea and above unoccu- 
pied territory as free; the atmosphere above the ter- 
ritory and the marginal sea of a State as under the juris- 
diction of the subjacent State. Within the aerial do- 
main of the State and subject to the necessary police 
and like regulations the navigation of the air would be 
free. The aircraft with its persons and goods, save for 
police and like regulations, would be under jurisdiction 
of the State to which it belongs. (17 Ibid., p. 410.) 

Subcommittees of the Comite Juridique International 
de l'Aviation in considering a " Code de l'Air " arrived 
at different conclusions in 1910. The French subcom- 
mittee agreed upon the following : 

Opinions in 1910. 67 

Akticle l er . La circulation aerienne est libre. Neamnoins les 
Etats conservent les droits necessaires a leur defense, c'est-a-dire 
k leur propre securite et a celle des persomies et des biens de 
Leurs habitants. 

Art. 2. L'espace demeure absolument libre au-dessus de la 
pleine nier et des territoires inhabites. 

The German committee proposed two projects, 7 mem- 
bers approving the first and 14 approving the second. 

Projet No. 1. — L'espace au-dessus de la haute mer et des 
territoires n'appartenant a personne est libre. L'espace situe au- 
dessus du territoire d'un Etat, y compris les mers cotiSres, est & 
envisager comme une partie du territoire de cet Etat. 

Projet No. 2. — L'espace au-dessus de la haute mer et des ter- 
ritoires n'appartenant a personne est libre. L'espace situe au- 
dessus du territoire d'un Etat (y compris les mers cotieres) est 
a envisager comme une partie du territoire de cet Etat. Aucun 
Etat, cependant, ne doit, en temps de paix, interdire le passage 
inoffensif aux aerostats etraugers. Les evenements qui se pas- 
sent sur un aerostat etranger dans l'espace au-dessus, du territoire 
d'un autre Etat et qui n'interessent pas celui-ci sont juges 
d apres le droit de l'Etat auquel 1'aerostat appartient. (Revue 
Juridique Internationale Aerienne l ere Annee, pp. 75-76.) 

The Comite Juridique International de l'Aviation at 
meetings in April and May, 1910, considered the French 
and German propositions and agreed upon the following: 

Article Premier. — La circulation aerienne est libre. Les 
Etats n'ont sur l'espace situe au-dessus de leur territoire, y 
compris les mer cStieres, que les droits necessaires pour garantir 
la securite' et l'exercice des droits prives. (Ibid., p. 144.) 

If the dominion of the air is in the subjacent State, 
this rule would establish a servitude in the air, as is the 
case in the general servitude in marginal seas which al- 
lows innocent passage. 

The secretary of the Verona congress in 1910, Prof. 
Arnaldo de Valles, in an article in the July- August num- 
ber, 1910, of the Revue Juridique Internationale de la 
Locomotion Aerienne, said : 

1. La theorie de la domanialite publique de l'espace aerien est 
la plus conforme au regime juridique et economique actuel, soit 
dans le droit national, soit dans le droit international. 

2. Cette theorie donne une raison scientifique au droit de police 
l'Etat et a l'exclusion des aerostats militaires des autres nations; 

68 • Air Craft in War. 

conclusions anxquelles on arrive dans la theorie de liberte 
senlement par voie empirique. 

3. Une tlieorie de la domanialite de l'espace aerien ne restreint 
pas la vraie liberte qni consiste dans le droit de circulation. 
(Ibid., p. 208.) 

National regulations. — International aerial navigation 
has already become a subject of domestic administrative 
regulation. The French minister of the interior issued a 
circular to the local officials on March 12, 1909, prescrib- 
ing a method of action in case of landing of foreign bal- 
loons within their respective territorial divisions : 

12 Maes, 1909. 

Monsieur le Prefet : La frequence des atterrissages de ballons 
etrangers en France a amene le gouvernenient k s'oecuper de cette 
question. II a ete reconnu que ces ballons etaient soumis au 
payement des droits de douane et il a ete decide en consequence 
qu'il y avait lieu en pareil cas, de prendre les mesures suivantes: 
chaque fois qu'un ballon etranger descendra sur le territoire 
frangais, les maires, commissaires de police on commissaires 
speciaux devront vous en informer et prevenir sans retard les 
agents du service des douanes, s'il en existe dans le lieu d'atter- 
rissage, ou, a leur defaut, les agents des contributions indirectes, 
afin d'assurer la perception des droits de douane. Le ballon devra 
§tre retenu jusqu'au payement des droits. D'autre part, les 
aeronautes seront tenus de decliner leur nom, prenoms, qualite 
et domicile. Si ce sont des militaires, ils devront indiquer le 
grade qu'ils occupent dans l'armee ainsi que le corps ou les 
services auquel ils appartiennent. En outre, les maires et les 
commissaires de police devront s'assurer que l'ascension a et§ 
entreprise dans un but purement scientifique et que les aeronautes 
ne sont livres a aucune investigation prejudiciable a la securite 
nationale. Vous aurez s-oin de me transmettre ces renseignements 
par la voie telegrapbique en m'avisant de l'atterrissage du ballon. 
Je vous prie de porter a la connaissance de MM. les sous-prefets, 
maires et commissaires de police les presentes instructions dont 
vous voudrez bien m'accuser reception. 

Le President du Conseil, ministre de l'interieur, 

G. Clemenceau. 

In 1909 also the opinion in Denmark seemed to be that 
a German balloon had no right to establish in Denmark 
a station from which to proceed to the North Pole, and 
it was maintained that a state had the right to forbid 
airships access to any part of its territory if it judged 
such access prejudicial to the national interests. (Vy 

National Regulations. 69 

Revue Droit International Public, p. 673, Sept.-Oct., 

There is also an undisputed legal right to regulate the 
movement of persons approaching fortifications, whether 
they approach by land, water, or air. 

The use of the wireless telegraph has also been sub- 
ject to national and international regulation. 

Jurisdiction in subjacent State. — The Berlin agree- 
ment of 1903 and the Berlin convention of 1906 in re- 
gard to wireless telegraphy assume for the more im- 
portant States of the world that jurisdiction over the 
atmosphere resides in the subjacent States. 

The Hague conventions have prohibited by interna- 
tional agreement the launching of projectiles from bal^ 
loons, bombardment "by any means whatever " of towns, 
villages, habitations, or buildings which are not de- 
fended and unneutral use of the radiotelegraph. 

A dispatch of December 20, 1910, announces that Italy 
proposes that for time of war, by agreement by joint note, 
the powers of the world prohibit all firing from and 
arming of aerial ships, limiting their use to scouting and 
observation purposes only. This restriction was not 
made in the Turko-Italian War of 1911-12'. 

It is evident from the regulations issued by State au- 
thority, from decisions of courts, from codes, and ex- 
pressions of State officials that States assume that they 
have jurisdiction in the air space above their territory. 

The ideas in regard to the limits of aerial jurisdiction 
set forth by those who are giving special attention to this 
subject are not, however, in accord. It is natural that 
one group should maintain the ancient doctrine that " the 
air is free. " Another group maintains that the domain 
of the air is exclusively in the subjacent State. A third 
group, between these, maintains that a certain zone of 
atmosphere above a State is within its jurisdiction, and 
beyond this the air is free. The height of this zone of 
jurisdiction is, however, a subject of considerable differ- 
ence of opinion. 

■ The argument has been advanced that the aerial do- 
main, of a State should be limited to a certain distance 

70 Air Craft in War. 

above its territory. It has been stated that the altitude 

which an airship might attain can be determined, but as 

the limits fixed in earlier estimates have been surpassed 

it seems unwise to attempt at present to establish such 


Some think the height of the zone can be determined 

in a manner analogous to that of determining maritime 
jurisdiction. Some see unsurmountable difficulties in 
the use of this analogy. Of those who favor a zone 
theory some propose that the zone be determined by the 
limit of vision ; some that the limit of effective control by 
arms be the determining factor; some that an arbitrary 
limit be agreed upon by the States of the world; and 
others advance other propositions. 

It is evident that the claim can not be well sustained 
that the aerial dominion should be regarded as analogous 
to maritime, and that what is allowed in the marginal 
sea be allowed in a marginal zone of air, and what may 
be done on the high sea may be done in the aerial space 
above this marginal zone. While in time of war a battle 
between fleets upon the high sea might not endanger any 
neutral, a contest between their aerial fleets in the high 
air might result most disastrously to the subjacent neu- 
tral. In any case, while the force of gravity remains and 
until further means for counteracting its operation are 
devised, a neutral State can not be expected to submit to 
the risks of such use of the air. A warship upon the 
high sea when disabled may sink to the bottom without 
peril to the nearest neutral. From a battle in space 
above a neutral the descent of the disabled airship, pos- 
sibly with a load of explosives, would certainly be with 
peril to the neutral. The perils to innocent neutrals be- 
cause of war upon the high sea may be exceptional and 
almost negligible. The perils to innocent neutrals in 
case of war in the high air above neutral territory would 
be certain and grave. Indeed, the perils to those who, 
by the modern laws and customs of war are not liable to 
undue risks even within enemy territory, would give good 
ground for a question as to whether aerial battles above 
belligerent territory even should not be restricted. If 

Jurisdiction in Subjacent State. 71 

belligerents on the sea may not fight so near the coast 
that their shot shall fall within neutral jurisdiction, it 
would seem that battles in the air above neutral jurisdic- 
tion would be similarly prohibited. This would apply 
to the air above land and above the marginal sea, as pro- 
jectiles or disabled airships would, by the universal physi- 
cal law, fall toward the center of the earth when unre- 
strained. As, according to the law of physics, the velocity 
would be accelerated in proportion to the distance from 
which a body falls, it would on a physical basis be no less 
dangerous to allow a free zone at a considerable height 
than in a lower altitude. While on the sea it might be 
generally maintained that the greater the horizontal dis- 
tance from the adjacent State the less probability that the 
act would affect the adjacent State, it could not be claimed 
that the greater the vertical distance from a subjacent 
State the less the probability that the act would affect the 
subjacent State. This distinctly would not be true in 
case of anything falling from an airship. Similarly, in 
observations of fortifications, photography by telescopic 
lenses, etc., increase of altitude may within limits give a 
greater range. Submarine mines for the defense of a 
State may not be visible from the surface of the water 
but may be seen from an airship. 

It would seem that physical safety, military necessity, 
the enforcement of police, revenue, and sanitary regula- 
tions justify the claim that a State has jurisdiction in 
aerial space above its territory. This position also seems 
to underlie established domestic law and regulations, the 
decisions of national courts, the conclusions of interna- 
tional conferences, and the provisions of international 

It would seem wise, therefore, to start from the premise 
that air above the high seas and territory that is res 
nullius is free, while other air is within the jurisdiction 
of the subjacent State " and that the exceptions to this 
rule are such only as by common usage and public policy 
have been allowed, in order to preserve the peace and 
harmony of nations and to regulate their intercourse in 
a manner best suited to their dignity and rights," and for 

72 Air Craft in War. 

these exceptions to the exclusive right of aerial jurisdic- 
tion of the subjacent State, international conferences 
should by agreement immediately provide. 

Von Bar's proposition, 1911. — M. von Bar, after con- 
sideration of various aspects of the use of air craft in 
the time of war, submitted to the members of the Insti- 
tute of International Law in 1911 the following rules : 

Aeticle I. En general il est interdit de se servir des aerostats, 
ballons or aeroplanes comme moyens de destruction ou de combat. 1 

Aet. 2. Toutefois. 

(a) Les aerostats, ballons ou aeroplanes militaire ennemis, si 
Ton tire sur eux (par des canons places a terre ou k bord d'un 
vaisseau) 2 peuvent se defendre. 

(&) Les combats en l'air sont permis, — 

(1) S'il y a combat naval et que les aerostats, ballons ou 
aeroplanes ne sont eloignes que de vingt kilometres du lieu du 

(2) Dans les mers territoriales des belligerauts dans une zone 
de blocus. 3 

(3) Dans les spMres aeriennes enveloppant les territoires des 

Aet. 3. II est interdit de capturer en l'air des aerostats, etc., 
prives ennemis, sauf les cas ou ils entrent volontairement dans 
la sph§re aerienne du territoire de l'adyersaire ou dans une zone 
de blocus ou dans le cas de contrebande prevu par l'art. 4. 

Aet. 4. De meme il est interdit de saisir et de conflsquer des 
aerostats neutres ou leurs cargaisons k titre de contrebande, sauf 
le cas ou Ton apporte immediatement des secours a une cote ou a\ 
un port bloque ou a l'armee ou a la flotte ennemie an theatre de 
la guerre. 

Aet. 5. Dans les cas exceptes par les art. 4 et 5 on appliquera 
les regies des prises maritimes. 

1 Peut-gtre on prefererait une formule conforme a celle de la convention 
de la Haye. Mais elle ne dirait pas tout ce qu'a mon avis il faut dire. 
(Cfr., art. 2.) 

2 Comme les combats en l'air, sauf les cas mentionnes dans l'art. b, 
sont en general interdits on ne pourra tirer sur eux que de cette maniere. 

3 Comme, en general, dans les mers territoriales des belligerants les 
vaisseaux neutres ont le droit de libre passage ces mers ne doivent pas 
etre rendues inaccessibles par les dangers de batailles aeriennes. Autre- 
ment la navigation aerienne, meme d'un pays neutre et voisin a un ter- 
ritoire d'un Etat belligerant pourrait etre entravee en grande partie ; 
par example si la France etait partie belligerante et l'Angleterre neutre 
les aerostats anglais seraient, en passant la Mancbe exposes a des dangers 
empecbant presque toute la navigation aerienne. Voyez en comparaison, 
quant a securite de la navigation en mer comme en l'air, le projet de 
M. Fauchille art. 23. It faut prendre en consideration que des courants 
peuvent tres facilement porter les aerostats dans une zone ainsi cir- 

Project Before Institute. 73 

Aet. 6. II est interdit aux aerostats prives ennemis de penetrer 
dans la sphere aerienne de l'Etat adversaire. 

Aet. 7. Les belligerants peuvent interdire aux aerostats neutres 
de penetrer dans la sphere aerienne de leur territoire. 

Akt. 8. II est interdit de tirer sur des aerostats neutres sans 
avertissernent prealable et de tirer sur eux si, par hasard, ils sont 
forces d'atterrir. 

Project before the Institute of International Law. — 
The project submitted to the Institute of International 
Law in 1911, provides : 

Aet. 22. Les aerostats militaires des belligerants qui penetrent 
sur le territoire d'un Etat neutre ne doivent pas y demeurer plus 
de 24 heures, a moins que leus avaries ou l'Etat de l'atmosphere ne 
les empechent de partir dans ce delai. 

Si des aerostats des deux parties belligerantes se trouvent simul- 
tanement en un meme point de ce territoire, il doit s'ecouler au 
moins 24 heures entre le depart de l'aerostat d'un belligerant et 
le depart de l'aerostat de l'autre. L'ordre des departs est deter- 
mine par l'ordre des arrivees, a moins que l'aerostat arrive le 
premier ne soit dans le cas ou la prolongation de la duree legale 
de sejour est admise. 

Les aerostats belligerants ne doivent rien faire en territoire 
neutre qui puisse augmenter leur puissance militaire, et leur 
presence ne doit en aucune maniere prejudicier a FEtat neutre ; les 
seuls actes qu'ils peuvent accomplir sont ceux que reclame 
I'humanite et qui leur sont indispensables pour atteindre le point 
le plus rapproche de leur pays ou d'un pays allie au leur pendant 
la guerre. 

D'une maniere generale, il convient d'appliquer a la guerre 
aerienne les principes poses par la convention de la Haye du 18 
octobre 1907, concernant les droits et les devoirs des puissances 
neutres en cas de guerre maritime. (24 Annuaire de l'lnstitute de 
Droit International, p. 33.) 

This project seems to disregard the fact that the char- 
acter of aircraft is very different from that of craft that 
keep the sea, as the medium which supports them is also 
different. More stringent regulations will doubtless be 
necessary if neutrality is to be maintained and belliger- 
ents as to receive treatment to which they are entitled. 

Action of institute, 1911. — The Institute of Interna^- 
tional Law since 1900 have given attention to various 
aspects of the regulation of the use of the air. The fol- 
lowing vote was adopted at the session of the institute 
at Madrid in 1911 : 

74 x Air Graft in War. 

Sur le regime juridique des aerostats. 
1. Temps de paix. 

1. Les aeronefs se distinguent en aeronefs publics et en aeronefs 

2. Tout aeronef doit avoir une nationality, et une seule. Cette 
nationality sera celle du pays ou l'aeronef aura ete inmatricule. 
Chaque aeronef doit porter des marques speciales de reconnais- 

L'Etat auquel l'inmatriculation est demandee, determine a, 
quelles personnes et sous quelles conditions il peut l'accorder, la 
suspendre ou la retirer. 

L'Etat qui immatricule l'aeronef d'un proprietaire Stranger ne 
saurait toutefois pretendre a la protection de cet aeronef, sur le 
lerritoire de l'Etat dont releve ce proprietaire, contre l'application 
des lois par lesquelles cet Etat aurait interdit a ses nationaux de 
faire immatriculer leurs aeronefs a l'etranger. 

3. La circulation aerienne internationale est libre, sauf le droit 
pour les Etats sous-jacents de prendre certaines mesures, a deter- 
miner, en vue de leur propre s^curite" et de celle des personnes et 
des biens de leurs habitants. 

2. Temps de guerre. 

1. La guerre aerienne est permise, mais k la condition de ne 
pas presenter pour les personnes ou les proprietes de la popula- 
tion pacifique de plus grands dangers que la guerre terrestre ou 
maritime. (24 Annuaire de L'Institut de Droit International, 
p. 346.) 

Opinion of Fauchille. — Fauchille, who has given much 
attention to aerial domain, has recently set forth his ideas 
upon war in the air in his sixth edition of Bonfils, Droit 
International Public. 

Fauchille says, in regard to the general relations of 
belligerents and neutrals as concerns the field of aerial 
warfare : 

Quel peut etre le theatre de la guerre aerienne? La guerre, si 
elle doit nuire aux belligerants, ne peut porter atteinte aux in- 
terets des neutres. L'application de cette idee conduit a la regie 
suivante: les Etats belligerants ont le droit, en quelque partie 
que ce soit de l'atmosphere, de se livrer a des actes d'hostilit£ 
au-dessus de leur territoire continental et au-dessus de la pleine 
mer ou de la mer qui longe leurs cotes ; il leur est, au contraire, 
interdit d'accompiir des actes hostiles, susceptibles d'entrainer la 

Opinion of Fauchille. 75 

chute de projectiles et d'une roaniere generale de causer des dom- 
niages, au-dessus du territoire continental des Etats neutres a quel- 
que hauteur que ce soit, et a proximite des cotes de ces Etats dans 
un rayon determine par la force du canon de leurs aeronefs. 

Les aeronefs niilitaires des belligerants, et aussi les. aeronefs 
publics iion militaires, ne peuvent, en temps de guerre comme en 
temps de paix, circuler au-dessus des Etats neutres qu'avec l'au- 
torisation de ces Etats; quant aux aeronefs prives, ils n'ont 
besoin pour circuler d'aucune automation. Mais il est dSfendu 
aux uns et aux autres de sojourner au-dessus des pays neutres 
dans un certain rayon pres des frontieres de l'Etat ennemi, car 
il ne faut pas qu'ils puissent, en se tenant au-dessus de ces pays, 
faire des actes d'observation et d'exploration sur le territoire de 
l'adversaire. La circulation des aeronefs en temps de guerre est, 
en tout cas, soumise aux m§mes restrictions que pendant la paix ; 
ils doivent notamment respecter les regions interdites, specialement 
les ouvrages fortifies (n° 531 6 ), et s'abstenir de tous actes dom- 
mageables au pays sous-jacent. (Bonfils, Droit International 
Public, Fauchille's 6 e ed., No. 1440 8 .) 

In general, the opinion of most writers is to extend so 
far as possible the principles embodied in the rules for 
war on land and sea to the conduct of war in which aerial 
domain is involved. 

Opinions on use of aerial space. 

But they (the belligerents) clearly do not have the right of 
using the aerial space surrounding the territory of neutral States 
(including marginal waters) for military purposes. (A. S. Her- 
shey American Journal of International Law, vol. 6, p. 386.) 

Modern law of nations allows acts of war to take place only 
within the territory of the belligerents or on the high seas. If 
air forces are allowed to engage in future wars, they, too, will 
have to observe this principle. They will be limited to the air 
domain of the belligerents and to the free parts of the air space. 
(Air Sovereignty — Lycklama a Nijholt, p. 65.) 

The great importance of the aforesaid rule lies in its comple- 
ment, which forbids acts of hostility within neutral territory, 
Hence the air space of neutral States will be closed to hostilities. 
(Ibid., p. 65.) 

So passage above the neutral land can not be allowed any more 
than it is permitted on the soil. (Ibid., p. 67.) 

In accordance with my conception of the legal nature of the 
air space over the different parts of the earth's surface, the bel- 
ligerents can only use the air space over their own territory and 
over their coast waters, in addition to the air space over the open 

76 Air Craft in War. 

sea, and over territory without sovereignty, and can not, on the 
other hand, use the air space over the territory and the coast 
waters of neutral States. (Die Luftschiffahrt in Kriegsrecht- 
licher Beleuchtung, Alex. Meyer, p. 18.) 

The air space over the territory and coast waters of neutral 
States is, in accordance with my conception, by its legal nature, 
to be considered as neutral territory in every respect Therefore 
not only actions which are against the interests of neutral States 
are prohibited, as, for instance, a battle, but in general all actions 
not consistent with neutrality. (Ibid., p. 20.) 

This author holds that the entrance of belligerent men- 
of-war into neutral waters is not consistent with the 
neutral character of the territory, and should be prohib- 
ited, except in certain special cases, for instance, to trans- 
ports carrying wounded, therefore — 

In the war law of the air this basic principle must be asserted, 
and, therefore, during a war military airships of the belligerents, 
on account of the warlike nature of the act, must be prohibited 
both from passing through neutral air space, and also, in general, 
from landing in any neutral territory. (Ibid., p. 24.) 

Russian regulations, 1904. — During the Russo-Japanese 
War of 1904—5, Russia issued among the rules to be ob- 
served : 

The following actions, prohibited to neutrals, are considered as 
violating neutrality : The transport of the enemy's troops, its 
telegrams or correspondence, the supplying it of transport boats 
or war vessels. Vessels of neutrals found to be breaking any of 
these rules may be, according to circumstances, captured and con- 
fiscated. (U. S. Foreign Relations, 1904, p. 72S.) 

Japanese regulations. WOJf. — The Japanese regulations 
during the Russo-Japanese War of 1904—5 provided for 
the capture of such vessels as " engaged in scouting or 
carrying information in the interest of the enemy, or are 
deemed clearly guilty of any other act to assist the 
enemy," and also provided for the confiscation of vessels 
guilty of such service. 

The memoranda submitted to the international naval 
conference in 1908 by the 10 naval powers participating 
showed : 

Qu'une idee commune est admise, d'apres laquelle le belligerant 
peut poursuivre un certain nombre d'actes constituant de la part 

Blockade Against Aerial Graft. 77 

des navires de commerce neutres mie assistance donnee a l'ennemi. 
Pi y a la une violation de la neutralite que le belligerant est en 
droit d'empecher. (International Naval Conference, Parliament- 
ary Papers, Miscellaneous No. 5 (1909), p. 106.)' 

Application of principles to blockade. — Whether the 
doctrine of freedom of the air for all navigators or the 
doctrine of exclusive jurisdiction in the subjacent State 
prevail, the question of the right of an air craft to enter 
a blockaded port would be an important one. Must a 
naval blockading force also maintain an aerial fleet in 
order that the blockade be binding under the principle 
that a blockade " to be binding must be effective ; that is 
to say, maintained by a force sufficient really to prevent 
access to the coast of the enemy," as provided in the 
Declaration of Paris in 1856 ? The United States has in- 
terpreted this clause to mean that " an effective block- 
ade is a blockade so effective as to make it dangerous in 
fact for vessels to attempt to enter the blockaded port; it 
follows that the question of effectiveness is not controlled 
by the number of the blockading force." (The Olincle 
Rodrigues, 174 U. S. Sup. Ct. Bepts. (1899), p. 510.) 

Apparently if a blockade of a place is maintained by 
seagoing vessels only, it will not be dangerous for air 
craft to pass the line or to enter overland by making a 
comparatively short detour. The actual cutting off of 
communication with a place by means of a maritime 
blockade is increasingly difficult, if not impossible. As 
the present rules in regard to blockade are such as have 
developed for the maintenance of blockade by sea, it is 
not reasonable to expect that these rules would in all 
cases apply to aerial navigation. 

The service which air craft can at present render to a 
blockaded place would largely be that of a means of 
communication with the outside world. Transportation 
of goods and persons would not commonly be by this 
method until aerial craft are further developed. 

The case of the Atalanta, — The attitude of the learned 
English judge, Sir William Scott, later Lord Stowell, on 
the carriage of dispatches and maintenance of a means of 
communication with those who would be most served has 

78 Air Craft in War. 

justly formed a basis for much of the later reasoning 
upon regulation of communication in the time of war. 
In the case of the Atalanta, in 1808, the communication 
involved was between a mother country and colony. The 
principles might apply equally well to any area with 
which communication is prohibited. A somewhat ex- 
tended quotation from Lord Stowell's opinion shows the 
course of reasoning which has been approved : 

That the simple carrying of dispatches between the colonies 
and the mother country of the enemy is a service highly injurious 
to the other belligerent is most obvious. In the present state 
of the world, in the hostilities of European powers, it is an object 
of great importance to preserve the connection between the mother 
country and her colonies ; and to interrupt that connection, on 
the part of the other belligerent, is one of the most energetic oper- 
ations of war. The importance of keeping up that connection, 
for the concentration of troops, and for various military purposes, 
is manifest; and I may add, for the supply of civil assistance, 
also, and support, because the infliction of civil distress for the 
purpose of compelling a surrender forms no inconsiderable part 
of the operations of war. It is not to be argued, therefore, that 
the importance of these dispatches might relate only to the civil 
wants of the colony, and tbat it is necessary to show a military 
tendency; because the object of compelling a surrender being a 
measure of war, whatever is conducive to that event must also 
be considered in the contemplation of law as an object of hos- 
tility, although not produced by operations strictly military. 
How is this intercourse with the mother country kept up in time 
of peace — by ships of war or by packets in the service of the 
State? If a war intervenes and the other belligerent prevails to. 
interrupt that communication, any person stepping in to lend 
himself to effect the same purpose, under the privilege of an 
ostensible neutral character, does, in fact, place himself in the 
service of the enemy State, and is justly to be considered in that 
character ; nor let it be supposed that it is an act of light and 
casual importance. The con&equence of such a service is indefi- 
nite, infinitely beyond the effect of any contraband that can be 
conveyed. The carrying of two or three cargoes of stores is neces- 
sarily an assistance of a limited nature; but in the transmission 
of dispatches may be conveyed the entire plan of a campaign 
that may defeat all the projects of the other belligerent in that 
quarter of the world. It is true, as it has been said, tbat one 
ball might take off a Charles the Xllth, and might produce the 
most disastrous effects in a campaign ; but that is a consequence 
so remote and accidental that, in the contemplation of human 

Jurisdiction in Air Space. 79 

events it is a sort of evanescent quantity of which no account is 
taken ; and the practice has been, accordingly, that it is in con- 
siderable quantities only that the offense of contraband is con- 
templated. The case of dispatches is very different; it is im- 
possible to limit a letter to so small a size as not to be capable 
of producing the most important consequences in the operations 
of the enemy. It is a service, therefore, which, in whatever 
degree it exists, can only be considered in one character as an 
act of the most noxious and hostile nature. 

This country, which — however much its practice may be mis- 
represented by foreign writers, and sometimes by our own — has 
always administered the law of nations with lenity, adopts a 
more indulgent rule, inflicting on the ship only a forfeiture of 
freight in ordinary cases of contraband. But the offense of carry- 
ing dispatches is, it has been observed, greater. To talk of the 
confiscation of the noxious article, the dispatches, which consti- 
tutes the penalty in contraband, would be ridiculous. There 
would be no freight dependent on it, and therefore the same pre- 
cise penalty can not, in the nature of things, be applied. It be- 
comes absolutely necessary, as well as just, to resort to some 
other measure of confiscation, which can be no other than that 
of the vehicle. (6 C, Robinson's Admiralty Reports, p. 440.) 

The aim of the blockade is to cut off communication 
with the blockaded place. If one belligerent, as Lord 
Stowell says — 

prevails to interrupt that communication, any person stepping in 
to lend himself to effect the same purpose (maintain communica- 
tion) under the privilege of ostensible neutral character does, in 
fact, place himself in the service of the enemy State, and is justly 
to be considered in that character. 

An aircraft that enters a port blockaded by water 
would in effect lend itself to the maintenance of com- 
munication with the area outside and would practically 
be in the service of the enemy. Such acts have in recent 
years been regarded as in the nature of unneutral service. 

Jurisdiction in air space. — This situation involves the 
consideration of a field of relations which has not yet 
been completely defined. It is therefore necessary to 
consider the broad question of aerial jurisdiction some- 
what fully, giving due weight to conditions somewhat 
analogous on land and sea. The air is, however, neither 
land nor sea, and the attempt to extend the laws of one 
or the other to the air would be as unfortunate in results 

80 Air Craft in War. 

as an attempt to extend the laws of the land to the sea. 
The air is less stable and less adapted to appropriation 
than the sea, as the sea is less adapted to appropriation 
than the land. There has accordingly grown up an idea 
that land might be subject to ownership in the strict 
sense, -while the sea could not be owned, but might be 
under the jurisdiction of a State. Eights in air space 
would likewise be matters which would involve the prin- 
ciples of jurisdiction. 

Private aircraft can be more easily used for military 
purposes than can private marine vessels.^ The transfer 
of aircraft from neutral to belligerent control is more 
easy and less possible to detect. Unneutral service by 
aircraft would be difficult to prevent. 
. Undoubtedly the laws of war on land and on sea 
should be adapted to the aerial space so far as possible, 
but as the laws for land do not cover all possible contin- 
gencies which may arise at sea, so the laws of land and 
sea would not cover all contingencies that might arise in 
connection with aerial space. 

Referring to the marginal sea, Ortolan says: 

L'etat a sur cet espace non la propriete, niais un droit d'einpire; 
nil pouvoir de legislation, de surveillance et de jurisdiction, con- 
formernent aux regies de la jurisdiction internationale. (Ortolan, 
Diplomatic de la mer, vol. 1, Liv. II, Cn. VIII, p. 158.) 

The tendency to confuse the idea of territory' in the 
sense of land with jurisdiction has been common. The 
feudal system bound the State so closely with land that 
it was natural that land should for a time receive main 
consideration. The conditions necessary for State exist- 
ence were gradually distinguished, and the attributes 
of the State as a political entity were recognized. 
Among these attributes one of the most important is the 
right to exercise jurisdiction. 

As a legal concept, jurisdiction may be considered the 
right to exercise State authority. Story says that it 
may be — 

laid down as a general proposition that all persons and property 
within the territorial jurisdiction of a sovereign are amenable 

Jurisdiction in Air Space. 81 

to the jurisdiction of himself or his courts; and that the excep- 
tions to this rule are such only as by common usage and public 
policy have been allowed, in order to preserve the peace and har- 
mony of nations, and to regulate their intercourse in a manner 
best suited to their dignity and rights. (Santissima Trinidad, 7 
Wheat, 354.) 

It is fully recognized that all land and the marginal 
sea, to a distance of a marine league at least, is subject 
to territorial jurisdiction, and that the open sea is not 
within the jurisdiction of any State, though vessels sail- 
ing upon such seas are within the jurisdiction of the 
State whose flag they rightfully fly. As Story says, ex- 
ceptions to this rule of exclusive jurisdiction are such — - 

as by common usage and public policy have been allowed in order 
to preserve the peace and harmony of nations and to regulate 
their intercourse in a manner best suited to their dignity and 

The extreme theories of the freedom of the air would 
result in the denial of rights which existing States 
already consider essential to their existence as sovereign 
political entities. 

The enlarged use of aerial space has necessarily given 
rise to new problems. The range of possible attack in 
time of war is increased if free use of the air is per- 
mitted. Scouting and similar measures take on a more 
important character. 

The superficial frontier of a State is more easily deter- 
mined than a frontier extending through aerial space. 

Private rights in air space. — -Tfye question of rights in 
the space above the land and above the water was con- 
sidered until recent years a matter of comparatively little 
importance, and mainly interesting to those who were 
engaged in weaving abstract theories. 

The rights of the owner of land in the atmosphere 
above the land are stated in the codes of various States 
and in decisions of courts. Some of these rights were 
recognized in ancient times when the principle of State 
authority was not so fully developed. Individuals build- 
ing out into the sea or up into the air were secured in 
exclusive enjoyment of the space actually occupied. (Di- 
60252—12 6 

82 Air Graft in War. 

gest 1, 8, 6.) At the present time the old maxim cujus 
est solum ejus est usque ad coelum is subordinated to the 
paramount public interests, as is shown in many domestic 
cases involving trespass, damages, nuisance, public well- 
being, etc. 

The Japanese Civil Code provides : 

207. The ownership of land, subject to restrictions imposed by 
law or regulations, extends above and below the surface. (Low- 
hclni, translation.) 

Other codes have provisions to somewhat similar effect. 
(Code Civil Swiss, art. 667; Dutch, art, 626; Spanish, 
art. 350 ; Austrian, sec. 297 ; Hungarian, sec. 569 ; Italian, 
art, 440; Portuguese, art. 2288; German, arts. 905, 906.) 

While the rights of private persons in the air have 
received considerable definition, aerial jurisdiction and 
the right of State as against State have only recently 
become of such important practical significance as to 
attract international attention. 

Nearly all States have in their legislation assumed 
exclusive right to enact regulations for the use of aerial 
space. This has been particularly frequent in case of 
the use of the air for telegraphic purposes. 

Eights to game within the aerial frontiers has been 
repeatedly affirmed. 

It is evident from decisions and laws of many States 
that jurisdiction over the aerial space above the State is 
a well-recognized attribute of the State. There are many 
cases in English and American decisions. The European 
courts have also been called upon to act. These States 
have assumed the right to determine the use of the super- 
ficial air and to pass upon the claims of the owners of 
subjacent land. The courts have generally acknowledged 
that certain rights resided in the owner of the subjacent 
land. A judgment of the New York Court of Appeals 
in 1906, referring to the rights of the land owner, said : 

Usque ad coelum is the upper boundary, and while this may not 
be taken too literally, there is no limitation within the bounds of 
any structure yet erected by man. So far as the case before us 
is concerned, the plaintiff, as the owner of the soil, owned upward 
to an indefinite extent. He owned the space occupied by the wire 

Jurisdiction in Air Space. 83 

and had the right to the exclusive possession of that space which 
was not personal property, but a part of his land. According to 
fundamental principles, and within the limitation mentioned, 
space above land is real estate the same as the land itself. The 
law regards empty space as if it were a solid, inseparable from 
the soil, and protects it from hostile occupation accordingly. 
(Butter v. Frontier Telephone Co., 186 N. Y. Rep., 486.) 

As States have never hesitated to make laws, to adjudi- 
cate conflicting claims, and to enforce decisions in regard 
to the aerial space above their territory, it would mani- 
festly be a cause for friction to assert that this jurisdic- 
tion does not exist. 

The actual practice of States has shown that jurisdic- 
tion over ships navigating the air is assumed to reside 
in the subjacent State. France, on March 12, 1909, 
through an order of the minister of the interior, directed 
subordinate officials to enforce customs and other regu- 
lations in case of balloons landing in French territory. 
(Bulletin officiel du Ministere de 1'interieur, mars 1909, 
p. 127.) These regulations were put in operation by 
customs regulations. (Annales des douanes l er mai 1909, 
p. 116; l er decembre 1909, p. 295; Janvier 1910, p. IT.) 

Attitude of the United States. — The United States 
courts have declared that the National Government has 
jurisdiction over the atmosphere in matters which affect 
the general well-being and national interests. 

In the case of the Fensacola Telegraph Co. v. The 
Western Union Telegraph Co., 1878, Mr. Chief Justice 
Waite, in delivering the opinion of the Supreme Court 
of the United States, said : 

Both commerce and the postal service are placed within the 
power of Congress, because, being national in their operation, 
they should be under the protecting care of the National Govern- 

The powers thus granted are not confined to the instrumen- 
talities of commerce, or the postal service known' or in use 
when the Constitution was adopted, but they keep pace with the 
progress of the country, and adapt themselves to the new develop- 
ments of time and circumstances. They extend from the horse 
with its rider to the stagecoach, from the sailing vessel to the 
steamboat, from the coach and steamboat to the railroad, and 
from the railroad to the telegraph, as these new agencies are 

84 Air Graft in War. 

successively brought iuto use to meet the demands of increasing 
population and wealth. (Cited also in Western Union Telegraph 
Co. v. State of Texas, 105 U. S., 460.) 

The power of Congress would similarly extend to aerial 

Mr. Justice Holmes (1908) says of the development 
of the idea of demarcation between public and private 
rights in the atmosphere, water, etc. 

All rights tend to declare themselves absolute to their logical 
extreme. Yet all in fact are limited by the neighborhood of 
principles of policy which are other than those on which the 
particular right is founded, and which become strong enough 
to hold their own when a certain point is reached. The limits 
set to property by other public interests present themselves as 
a branch of what is called the police power of the State. The 
boundary at which the conflicting interests balance can not be 
determined by any general formula in advance, but points in 
the line, or helping to establish it, are fixed by decisions that 
this or that concrete case falls on the nearer or farther side. 
For instance, the police power may limit the height of buildings, 
in a city, without compensation. To that extent it cuts down 
what otherwise would be the rights of property. But if it should 
attempt to limit the height so far as to make an ordinary building 
lot wholly useless, the rights of property would prevail over the 
other public interest, and the police power would fail. To set 
such a limit would need compensation and the power of eminent 

It sometimes is difficult to fix boundary stones between the 
private right of property and the police power when, as in the 
case at bar, we know of few decisions that are very much in 
point. But it is recognized that the State as quasi-sovereign and 
representative of the interests of the public has a standing in 
court to protect the atmosphere, the water, and the forests 
within its territory, irrespective of the assent or dissent of the 
private owners of the land most immediately concerned. (Hud- 
son Water Co. v. McCarter, 209 U. S., 349.) 

Mr. Justice Holmes also in 1907 said : 

It is a fair and reasonable demand on the part of a sovereign 
that the air over its territory should not be polluted on a great 
scale by sulphurous acid gas, that the forests on its mountains, 
be they better or worse, and whatever domestic destruction 
they have suffered, should not be further 'destroyed or threatened 
by the act of persons beyond its control, that the crops and 
orchards on its hills should not be endangered from the same 

Belligerent Air Craft in Neutral Territory. 85 

Mr. Justice Holmes also affirms that a commonwealth 
of the United States — 

lias an interest independent of and behind the titles of its citi- 
zens, in all the earth and air within its domain. It has the last 
word as to whether its mountains shall be stripped of their forests, 
and its inhabitants shall breathe pure air. (Georgia v. Tennessee 
Copper Co., 206 U. S., 230.) 

Belligerent air craft in neutral territory. — Situation 
II (a) gives rise to the question of the rights of air 
craft of belligerents when in neutral territory. 

Belligerent State X, brings a balloon to neutral State 
Z, and fills it with gas preparatory to a flight with 
view to destroying a part of the fleet of its enemy, State 
Y, by dropping explosives from above. 

If the balloon is permitted to take 'in the gas, will 
it be an act of the nature which is permitted to vessels 
engaged in maritime war when they are permitted to 
coal in neutral territory? The subject of rights of coal- 
ing in neutral ports was given full consideration in 1910, 
International Law Situations, Situation I, pages 9-44. 
Previous to the Hague Convention respecting the Rights 
and Duties of Neutral Powers in Maritime War, there 
was a growing tendency to restrict the amount of coal 
that might be taken in a neutral port. By article 19 of 
that convention, the neutral State was left the option of 
limiting the supply to an amount necessary to reach " the 
nearest home port or some nearer named neutral desti- 
nation " or the neutral might permit the vessels " to take 
fuel necessary to fill their bunkers. 5 ' Those who main- 
tain the doctrine of an unlimited supply of fuel regard 
fuel simply as one form of supplies which makes navi- 
gation possible. Those who would restrict the supply 
regard fuel as more in the nature of war supplies. The 
drift of opinion as shown by The Hague regulations is 
toward the allowing of freedom in taking on fuel in a 
neutral port when not oftener than once in three months. 

Even with this extension of the right of coaling, the 
entrance of a balloon into neutral territory may be in 
marked contrast to the entrance of a vessel of war into 

86 A.vr Graft in War. 

a neutral port. One belligerent may easily learn of the 
entrance of a vessel of his enemy to a neutral port. The 
course which the vessel will follow on departure, the 
time of sojourn, and other facts may be reasonably de- 
termined. A vessel in a neutral port must ordinarily 
put to sea before reaching a home or an enemy port. 
A belligerent would ordinarily, therefore, have an op- 
portunity to meet and to engage the vessel of his oppo- 
nent in an area where battle is lawful and without 
material risk to the neutral. 

It is possible, however, that the territory of States 
might be so situated that a neutral State might be di- 
rectly between the two belligerents; e. g., if war existed 
between Germany and Spain. In such a case would the 
bringing of a war balloon to the French frontier from 
Germany place France under any obligation to permit 
the balloon to enter and take the necessary gas to make 
it navigable? If German balloons were permitted to 
enter French territory, take gas, and from points of ad- 
vantage attack Spanish forces and territory, would such 
permission by France be analogous to the entrance of 
German troops, or would it be the use of French territory 
as a base? Whether or not the right of absolute sov- 
ereignty in the air is in the subjacent State, certainly 
France would be under no obligation to receive a Ger- 
man Avar balloon into its territory when France is neutral 
except on ground of humanity or vis major. France 
could scarcely permit German war balloons to use French 
territory as a point from which to attack Spain, and if 
German forces should enter French territory internment 
would be the penalt}^. 

If, however, a war balloon were brought into a French 
port on board a German cruiser or other German public 
vessel, would it not be entitled to the exemptions to which 
the boats, launches, etc., of such vessels are entitled, and 
would it receive such treatment so long as it is appurte- 
nant to the vessel? Undoubtedly the vessel would be 
allowed to take coal, oil, or other fuel for navigation ; the 
launches would have similar privileges. Would the tak- 

Belligerent Air Craft in Neutral Territory. 87 

ing of gas by an air craft appurtenant to the public ship 
be analogous? 

When the air craft appertains to the land forces The 
Hague Convention respecting the Rights and Duties of 
Neutral Powers and Persons in Case of War on Land, 
1907, would prevail. Article 2 provides that: 

Belligerents are forbidden to move troops or convoys of either 
munitions of war or supplies across the territory of a neutral 

Article 2 of the same convention provides for intern- 
ment of troops entering neutral territory. 

When the air craft belongs to the naval forces and 
comes into port under its own power, it may probably be 
allowed to take on supplies analogous to the supply of 
fuel for war vessels without violation of any neutral obli- 
gation. The taking of coal is often with a view to bring- 
ing the war vessel within range of the enemy. The taking 
of gas by a balloon might be for a similar purpose. The 
neutral has full right to regulate the taking of coal, as 
has been shown in recent wars. The neutral would have 
a similar right to regulate the supply of gas. , 

In the use of neutral land for balloons for land war- 
fare the neutral territory becomes practically a base, 
and the neutral power is in reality receiving the belliger- 
ent forces into its territory, which is, according to the 
Convention respecting the Rights and Duties of Neutral 
Powers and Persons in Case of War on Land, Article 2, 
prohibited, unless internment follows. 

An air craft of a belligerent that is brought, on board 
a war vessel, into the territorial waters of a neutral may 
or may not be fitted for use in war. If at the time it is 
not fitted for use and the neutral State allows it to make 
the preparations necessary to adapt it for war the State 
will doubtless be liable to the suspicion that its territory 
has been used as a base for warlike preparations. 

Review of Situation II (a). — In the situation as stated 
the balloon is brought to neutral State Z to be filled with 
gas with view to a flight in order to destroy a part of 
the fleet of Y. This would seem to be an act in the nature 

88 Air Graft in War. 

of the use of the territory of State Z as a base for warlike 
operations and should be forbidden. 

Solution (a). — The protest of belligerent State Y 
should be heeded by neutral State Z. 

Firing into neutral territory. — In Situation II (Z>), 
the question is raised as to what could be done if the 
forces of one belligerent, State X, so maneuvers a bal- 
loon that if shot at by the forces of the other belligerent, 
State Y, the shot will fall in the jurisdiction of neutral 
State B. 

Unquestionably Y has a right to fire at a war balloon 
of State X. At the same time State B may demand that 
its jurisdiction be not violated. 

The Hague Convention respecting the Rights and 
Duties of Neutral Powers and Persons in Case of War 
on Land of 1907 provides, in article 1, " The territory of 
neutral powers is inviolable." The firing of a shot which 
would land in neutral territory would be a violation of 
neutrality and the neutral might, without offense, pro- 
ceed against the party committing such violation. 

That the hostilities are in such neighborhood that the 
risk of firing into a neutral State is present does not 
in any way excuse the belligerent from guarding against 
such action. 

Solution (b). — Y may take any action which would not 
involve a violation of neutral jurisdiction, as would be 
the case if the projectile should fall in the territory of 
State B. 

Jurisdiction over neutral air craft. — It is evident from 
Situation II (c) that there may be a risk to a belligerent 
from the flight of a neutral air craft over belligerent 
territory. If the jurisdiction of the air space is not in 
the subjacent State, the belligerent's right to control the 
use of the air space in the time of war would be limited. 
It would seem that such a claim would lead to many un- 
fortunate complications. On the other hand, if the bel- 
ligerent has jurisdiction over the air space above the 
territory, the Government can prescribe regulations for 
its use. Whether the theorv that the air is free or the 

Jurisdiction Over Neutral Air Craft. 89 

theory that the jurisdiction is in the subjacent State pre- 
vails, the belligerent must have the right to regulate the 
use of the air space by neutrals in order that his opera- 
tions may not be thwarted intentionally or unintention- 
ally by them. 

As a general rule, a belligerent must have the right to 
exercise such control of neutral air craft as may be neces- 
sary and possible. 

In Situation II (c) when a neutral air craft flies over 
the belligerent State in such manner as to observe the dis- 
position of its forces and in such direction as to make it 
possible that it may disclose this disposition to the 
enemy, it would be competent for the belligerent State 
to take such action as it was able in order to prevent the 

Opinion of Fauchille on area. — The rights of a neutral 
within the area of belligerent jurisdiction would natu- 
rally not extend to action which would injure the bel- 
ligerent or imperil the success of his military undertak- 
ings. Fauchille says: 

En temps de guerre, les neutres pourront-ils naviguer dans les 
airs dominant le territoire des belligerants? Si les aeronefs 
prives belligerants peuvent circuler dans l'atmosphere situee au- 
dessus des Etats neutres, il en est autrement des neutres vis-a-vis 
des belligerants : ici l'espionnage peut etre k craindre non seule- 
ment a l'egard des ouvrages fortifies, mais aussi a l'egard des 
mouvements et des emplacements de troupes qui, eux, sont suscept- 
ibles d'etre pergus avec profit jusqu'a 10.000 metres. Des lors, la 
navigation aerienne des neutres doit §tre prohibee dans toutes les 
fractions de ratmosphgre qui domine le territoire d'un pays bel- 
ligerant, ainsi que dans un rayon de 11.000 metres a compter de 
ses cdtes, car on peut evaluer & 1.000 metres la portion des eaux 
cotieres dont l'usage peut etre vraiment utile a la preparation de 
la defense. — Certains proposent de reconnaitre seulement aux 
Etats belligerants la faculte de defendre au-dessus de leur terri- 
toire la circulation des aeronefs des neutres. 

La solution qui defend aux aeronefs neutres de naviguer au- 
dessus et meme aux alentours du territoire des belligerants rend 
eu principe sans interet la question de savoir si les blocus etablis 
d'une inani&re effective par un belligerant sont obligatoires pour 
les a&ronefs neutres comme pour les navires neutres. Cette ques- 
tion ne pourra se poser que dans le cas assez rare ou le rayou 

90 Air Graft in War. 

(Taction d'un blocus, tel que l'a entendu la Declaration de Londres 
du 26 fevrier 1909, est superieur a 11.000 metres : en pareil cas, 
on ne voit aucune raison de distinguer entre la navigation aerienne 
et la navigation maritime. (Bonflls, Droit International Public 
Fauchille, 6 e ed., Nos. 1440 9 , 1440 10 .) 

Solution (<?). — When the neutral air craft lands within 
belligerent territory it may be detained or other measures 
may be taken to prevent the disclosure of military move- 

While the neutral air craft is still in the air, the bel- 
ligerent may take such measures as possible to prevent 
disclosure of his military movements. 

Resume (d). — From the nature of the assured and of 
the probable rights of a State in the aerial space above 
the earth's surface where a State is exercising effective 
authority, it can be inferred that the aeroplane passed 
through a prohibited zone in entering the blockaded 

From the nature of the service which an aeroplane 
is adapted to render, it may be fairly inferred that the 
aeroplane served as a means of communication between 
the blockaded port and the outside world. It would 
also be reasonable to presume that the aeroplane is in 
the service of the enemy. In such a case the liability 
to penalty does not cease with the delivery of the infor- 
mation at the blockaded port. The appearance seems to 
indicate that the aeroplane, if neutral, has been guilty 
of serving as a means of communication with the block- 
aded port. If the aeroplane belongs to the belligerent, 
it would be liable to capture in any case. 

There is a possibility that the aeroplane if neutral can 
prove its innocence, but this is a matter for the court 
and not for the naval officer to determine. If the aero- 
plane is engaged in unneutral service, the machine is 
liable to confiscation, and the crew is liable to treatment 
as prisoners of war. (24 Annuaire de lTnstitut de Droit 
International, p. 34, Art. 28.) 

The aeroplane falls within the limits of the territorial 
waters of the United States, and is therefore within the 

Solution. " 91 

area within which the United States forces may law- 
fully make captures. 

The commander of the vessel of the blockading fleet 
should, therefore, in case (d) send the aeroplane, if neu- 
tral, and the crew to a prize court for adjudication. If 
the aeroplane is belligerent, it with crew might be treated' 
as an enemy vessel taken under similar circumstances. 

Resume (e). — As the right of capture on the high seas 
in the time of war is practically the same as the right of 
capture within the territorial waters of the belligerent, 
the treatment of the aeroplane and its occupants should 
be the same as if captured within the territorial waters. 

Resume (/). — As there is no right of capture within 
neutral waters, the vessel of the blockading force might 
be under obligation to take such measures as he was able 
to rescue the occupants and the aeroplane from danger, 
but he would do this on the ground of humanity, and 
would have no military rights over persons or property. 

Solution (d). — If the aeroplane is neutral, it should 
be sent to a prize court for adjudication. 

If the aeroplane is belligerent, it may be treated as an 
enemy vessel taken under similar conditions. 

Solution (e). — The treatment would be the same if 
picked up from the high sea. 

Solution (/). — The belligerent would have no military 
rights over an aeroplane picked up in neutral waters. 


(a) The protest of belligerent • State Y should be 
heeded by neutral State Z. 

(b) Y may take any action which would not involve 
violation of neutral jurisdiction as would be the case if 
the projectile should fall in the territory of State B. 

(c) When the neutral air craft lands within belliger- 
ent territory, it may be detained or other measures may 
be taken to prevent the disclosure of military movements. 

While the neutral air craft is still in the air, the bel- 
igerent may take such measures as possible to prevent 
disclosure of his military movements. 

92 Air Graft in War. 

(d) If the aeroplane is neutral, it should be sent to a 
prize court for adjudication. 

If the aeroplane is belligerent, it may be treated as an 
enemy vessel taken under similar conditions. 

(e) The treatment would be the same if picked up 
from the high sea. 

(/) The belligerent would have no military rights 
over an aeroplane picked up in neutral waters. 

Situation III. 


[It is granted that the Declaration of London is binding.] 

There is war between the United States and State X. 
Other States are neutral. Supplies of the nature of con- 
ditional contraband are being carried by merchant ves- 
sels of State Y to Habana, whence they are sent by rail 
to Guantanamo. Cruisers of State X threaten to cap- 
ture these merchant vessels. They request protection of 
the fleet of the United States. The commanding officer 
replies that he has no authority to afford protection and 
that any interference by the cruisers of State X would 
be an offense against State Y. State X maintains that 
Habana is essentially a hostile destination. 

What position is correct ? 


Habana is not a hostile destination when the United 
States and State X are at war and other States are 

The position taken by the commanding officer of the 
fleet of the United States is correct. 


Acquisition of jurisdiction. — Prior to 1884 the acquisi- 
tion of territorial jurisdiction was usually based on dis- 
covery, occupation, conquest, prescription, gift, ex- 
change, or on some fact which implied the possession of 
sovereignty over the territory. There was also prior to 
1884 a fairly well established system of protectorates, 
with rights of the protector and protected defined in 
agreements. With the expansion of the political inter- 
ests of the leading States of the world into remote re- 
gions, particularly characteristic of the last 20 years of 
the nineteenth century, the claim to the right to exercise 


94 Cuba Neutral. 

jurisdiction came to be based on other grounds. Such 
attenuated rights as those claimed under the doctrine of 
the " sphere of influence " or the " sphere of interest " 
began to be maintained. Other methods of obtaining 
actual or prospective jurisdiction in smaller or weaker 
States were devised. The practice of leasing territory 
became common from the late years of the nineteenth 
century. Some of these leases involve absolute exclusion 
of the lessor State from any rights within the leased 
area. Other leases only confer certain specified rights 
upon the leaseholder. Some of the leases provide that 
the jurisdiction over the territory shall pass back to the 
lessor State in case the lessee for any reason withdraws 
from the territory. 

Degree of protection. — The protection given a political 
unity by a State which owes it protection varies widely. 
In some instances the protected community almost loses 
its own identity, while in other cases the protected com- 
munity is in nearly every respect equal to other States. 
The protection exercised may be for the good, of all 
States and may make the development of the protected 
State possible. Many States are bound by treaties which 
limit their freedom of action in certain respects. This 
does not destroy their statehood. The action of the 
State is limited by its own will and only to the extent 
specified in the treaty. 

Congo lease. — One of the early leases of territory was 
on the part of the Congo Free State to Great Britain. 
By an agreement of 1894 a strip of territory running 
along the German frontier for a considerable distance 
was leased to Great Britain and to be subject to British 
administration for a period corresponding to that during 
which Belgium should have control over the Congo terri- 
tory. Germany maintained that an indefinite lease of 
this character was equivalent to a cession of the terri- 
tory, and would injure her political position and inter- 
rupt her trade. The agreement with the neutralized 
Congo Free State was terminated by Great Britain, but 
apparently rather from diplomatic than from legal 

Congo Lease. 95 

In a note to Hall's International Law, appearing in 
the fourth edition, about this time, in 1895, the legal 
aspects of the Congo lease are considered : 

Great Britain could only receive a lease of the territory sub- 
ject to the provisions of antecedent treaties made between the 
Congo State and Germany, and notwithstanding a slight am- 
biguity in the language of the treaty made in 1884 between the 
two States, there can be no doubt that she would have been pre- 
cluded from levying duties upon goods imported from German 
sources. As regards the general " political position," the Congo 
State is neutral, and the treaty provides that in the event of 
cession of any part of its territory "the obligations contracted 
by the association" (i. e., the Congo State) "toward the German 
Empire shall be transferred to the occupier." Assuming, then, 
for a moment that a lease of indefinite duration is equivalent to 
a cession, the territory leased to Great Britain would have re- 
mained affected by the duties of neutrality, and could not have 
been used to prejudice the position of Germany. The treaty, it 
should be added, contains no stipulation, express or implied, that 
transfer of territory in any form should be dependent on German 
consent. It is difficult, therefore, to understand the conventional 
basis of the objection taken, and of legal basis in a wider sense 
it is evidently destitute. The Congo State has all rights of a neu- 
tral State, of which it has not been deprived by express compact. 
Those rights beyond question include the right to do all State 
acts which neither compromise nor tend to compromise neutrality. 
In the particular case the Congo State was clearly competent to 
grant a lease, because the lease carried with it, of necessity, the 
obligations of neutrality. Although a lease for an indefinite time 
may in certain aspects be the equivalent of a cession, in law it is 
not so; a State may be able to make a cession of territory freed 
from its own obligations, but in granting a lease it can not give 
wider powers than it possesses itself, and consequently, altogether 
apart from the treaty with Germany, the Congo State could not 
disengage territory from neutral obligations by letting it out 
upon a subordinate title. 

It may be remarked that the Congo State is equally compe- 
tent to acquire by way of lease, because the territory so acquired 
can at least be invested with a neutral character at the will of 
the Congo State, and probably must of necessity be considered, for 
such time as the connection lasts, to be a temporary extension 
of the neutral territory (p. 96, n.) 

From this discussion of the Congo lease, it is evidently 
the opinion that the lease can not be held to create rights 
which did not appertain to the territory before it was 

96 Cuba Neutral. 

leased, nor confer rights beyond those specified in the 
agreement and within the competence of the lessor State. 
The idea that the lease was in fact an actual alienation 
of the territory seems to be contrary to law and contrary 
to fact, though it may be that such leased territory may, 
at some future time, more easily pass under the actual 
ownership and sovereignty of the lessee. Undoubtedly 
it was the intention of some lessees to follow the lease 
by actual acquisition of sovereignty over the leased ter- 
ritory, but on the other hand many leases specifically state 
that sovereignty is not transferred, and within the last 
few years there has been a growing tendency, in part, 
perhaps, due to international jealousy, to insist that the 
terms of such agreements be observed strictly. While 
Port Arthur had been leased by China to Russia, yet 
after the area came within the military occupation of 
Japan as a result of the Russo-Japanese War, the lease 
did not pass in a formal manner until the consent of 
China was given in the treaty of Pekin in 1905. 

Establishing coaling stations. — Since the importance 
of fuel has made necessary stations from which a con- 
venient supply can be obtained, the States of the world 
possessing navies have established stations at available 
points. The character of these stations sometimes in- 
volves the actual cession of sovereignty over the area ac- 
quired for a fuel or naval station, or at times involves 
simply a right to keep a supply ship in the territorial 
waters of a foreign State. 

In certain cases, in Asia and Africa, these coaling sta- 
tions have become the centers of spheres of influence 
which have developed into actual territorial possessions. 

In establishing these coaling or naval stations the 
terms of cession usually maintain that the sovereignty 
remains in the State which grants the station to the for- 
eign State. It is evident that for purposes of war the 
responsibility for acts committed within the area must 
be either in the granting or in the holding State. If the 
responsibility is in the granting State, and that State 
is neutral, then the use of the area for a naval or coaling 
station would involve a failure to observe neutral obliga- 

Establishing Cooling Stations. 97 

tions. If the responsibility is in the holding State, and 
that State is at war, the use of the station would be an act 
in the ordinary course of war, and the station would be 
liable to attack or to other treatment to which enemy 
territory might be liable. It is also evident that such 
treatment will be logical, as the agreements by which 
stations are granted look specially to a condition of war. 
The territory which is leased, for a coaling or naval 
station gains no immunity from the consequences of 
war in which the lessee is engaged from the fact that 
the terms of the lease may specify that the sovereignty 
over the leased territory remains in the lessor. Practice 
in recent years has shown that, as in the case of Port 
Arthur leased by China, the lessor's neutrality may be 
recognized even when the leased territory may be the 
scene of hostilities. 

The treatment of areas leased before the outbreak of 
hostilities and regularly occupied by the lease-holding 
State should be distinguished from a neutral port which 
is used as a base. As Kleen says, there are at the present 
time many incentives which would lead a belligerent to 
take advantage of a weak neutral : 

Ce n'est que de notre epoque que les aides de guerre de cette 
categorie ont gagne une grande importance. Apr§s 1'enorme 
developpeinent des inoyens d'attaque et de leurs accessoires en 
suite des progres techniques, les munitions de guerre ont recu une 
augmentation telle, que l'organization de depots de ces objets 
sur divers points en pays etrangers mais voisins ou situes sur le 
chemin pour le theatre de la guerre peut acquerir une signification 
decisive pour le succes d'une armee. Et depuis que la vapeur est 
devenue la force motrice des flottes, la permission accordee a une 
grande marine militaire d'entretenir des depots de houille a des 
stations neutres intermediaires, serait, surtout sur la route qui con- 
duirait a un ennemi eloigne, d'une valeur inestimable, en facilitant 
le renouvellement des moyens de locomotion et en epargnant les 
longs transports. II devient d'autant plus necessaire de maintenir 
le droit et le devoir des neutres de ne point accorder des permis- 
sions semblables. Sans l'interdiction, les Etats neutres pius 
faibles et possedant des ports d'escale commodes, seront exposes 
aux pressions des puissances maritimes en guerre preteudant 
aux faveurs des depots, au detriment de la tranquility et de la 
neutrality de l'Etat souverain des c6tes. 
60252—12 7 

98 Cuba Neutral. 

Le droit des neutres d'interdire tout depot par un . belligerant 
chez eux n'a guere §te revoque' en doute. II fut dejii reconnu par 
les premiers auteurs du droit des gens, dans le principe etabli par 
eux de ne tolerer sur le territoire neutre aucune demarche qui 
soit de nature a seconder les operations de guerre. Mais en outre, 
depuis qu'une attention plus grande a ete fixee sur les questions 
y relatives, parce qu'il y a plus de causes qu'autrefois pour la 
supposition qu'elles surgissent dans la pratique, la dite interdic- 
tion par les neutres leur est imposee comme un devoir. En effet, 
l'abus de leurs territoires en vue de quelque depot pour la guerre 
ferait du pays neutre un point d'appui des operations. (Kleen, 
Lois et usages de la Neutrality, I, p. 487.) 

United States, coaling and naval stations. — With the 
development of what is called world politics the acquisi- 
tion of strategic positions for naval purposes has become 
important. To the United States this is no new idea, 
and the necessity for the acquisition of naval bases has 
been pressed home upon the United States. 

President Johnson said, in his third annual message, 
December 3, 1867 : 

In our Revolutionary War ports and harbors in the West India 
islands were used by our enemy, to the great injury and embar- 
rassment of the United States. We had the same experience in 
our second War with Great Britain. The same European policy 
Cor a long time excluded us even from trade with the West Indies, 
while we were at peace with all nations. In our recent Civil War 
the rebels and their piratical and blockade-breaking allies found 
facilities iu the same ports for the work, which they too success- 
fully accomplished, of injuring and devastating the commerce 
which we are now engaged in rebuilding. We labored especially 
under this disadvantage, that European steam vessels employed 
by our enemies found friendly shelter, protection, and supplies 
in West Indian ports, while our naval operations were necessarily 
carried on from our own distant shores. There was then a uni- 
versal feeling of the want of an advanced naval outpost between 
the Atlantic coast and Europe. The duty of obtaining such an 
outpost peacefully and lawfully, while neither doing nor menacing 
injury to other States, earnestly engaged the attention of the 
executive department before the close of the war, and it has not 
been lost sight of since that time. A not entirely dissimilar naval 
want revealed itself during the same period on the Pacific coast. 
The required foothold there was fortunately secured by our late 
treaty with the Emperor of Russia, and it now seems imperative 
that the more obvious necessities of the Atlantic coast should not 
be less carefully provided for. A good and convenient port and 

United States Coaling and Naval Stations. 99 

harbor, capable of easy defense, will supply that want. With the 
possession of such a station by the United States neither we nor 
any other American nation need longer apprehend injury or offense 
from any transatlantic enemy. (Richardson's Messages and 
Papers of the Presidents, Vol. VI, p. 579.) 

Johnson's message was written at a time when events 
had emphasized the need of " naval outposts." In the 
times of quiet the same need was mentioned in the mes- 
sage of President Hayes, of December 6, 1880. By the 
treaty of 1884 with Hawaii the United States obtained 
the right in Pearl River Harbor " to establish and main- 
tain there a coaling and repair station for the use of 
vessels of the United States." 

With the upbuilding of the Navy of the United States 
the need of coaling and other stations became clear, and 
these have from time to time been acquired. 

Relation of Cuba to the United States^ in consequence 
of Spanish- American War. — In this situation the funda- 
mental question which must be first considered is that 
of the relation of the Republic of Cuba to the United 

By the treaty of December 10, 1898, " Spain relin- 
quishes all claim of sovereignty over and title to Cuba." 
(Art. I.) 

This provision is unlike that in regard to Porto Rico, 
Guam, and the Philippines which is, " Spain cedes to 
the United States the island of Porto Rico," etc. 

Before invading Cuba the United States had formally 
resolved, by act of April 20, 1898 — 

That the United States hereby disclaims any disposition or 
intention to exercise sovereignty, jurisdiction, or control over 
said island except for the pacification thereof, and asserts its de- 
termination when that is accomplished, to leave the government 
and control of the island to its people. (30 U. S. Stat., p. 738.) 

The first resolution in this act is — 

That the people of the island of Cuba are, and of right ought 
to be, free and independent. 

Few principles have received more complete sanction 
in repeated decisions than that stated by the United 

100 Cuba Neutral. 

States Supreme Court in the case of Jones v. United 
States in 1890: 

Who is the sovereign, de jure or de facto, of a territory is not 
a judicial but a political question, the determination of which, 
by the legislative and executive departments of any government, 
conclusively binds the judges as well as all other officers, citizens, 
and subjects of that government. This principle has always been 
upheld by this court and has been affirmed under a great variety 
of circumstances. (137 U. S. Sup. Ct. Rpts., p. 202.) 

By the act of April 20, 1898, the United States had 
declared " that the people of the island of Cuba are, and 
of right ought to be, free and independent." By the 
treaty of December 10, 1898, Spain relinquished the 
claim to sovereignty over Cuba. The United States also 
disclaimed any disposition or intention to exercise " sov- 
ereignty, jurisdiction, or control " over Cuba except for 
its pacification. 

As the courts are bound by the action of the legislative 
and executive departments, the United States did not 
legally obtain by the treaty that which had been form- 
ally denounced, though the Government did declare its 
purpose to exercise its authority for the pacification of 
Cuba. The Government can accordingly exercise its 
own judgment in deciding when pacification is accom- 
plished. Such a state of peace and tranquillity as was 
sought by the United States would be advantageous to 
other States as well as to the United States. 

Article XVI of the treaty between the United States 
and Spain of December 10, 1898, provides that — 

It is understood that any obligations assumed in this treaty by 
the United States with respect to Cuba are limited to the time of 
its occupancy thereof; but it will, upon the termination of such 
occupancy, advise any government established in the island to 
assume the same obligations. 

It is thus declared that the rights of the United States 
under this treaty come to an end with the termination of 
the occupancy. 

Relations of the United States and Cuba by conven- 
tional agreements. — The United States have acquired 
rights as regards Cuba by virtue of treaties and other 

Conventional Agreements. 101 

conventional agreements. Certain aspects of the rela- 
tions under conventional agreements were considered in 
the Naval War College International Law Situations of 
1907. Situation I. 

Coaling and naval stations in Cuba. — The so-called " Piatt 
amendment " of March 2, 1901, provided : 

" That in fulfillment of the declaration contained in the joint 
resolution approved April twentieth, eighteen hundred and ninety- 
eight, entitled ' For the recognition of the independence of the 
people of Cuba, demanding that the Government of Spain relin- ; 
uuish its authority and government in the island of Cuba, and 
to withdraw its land and naval forces from Cuba and Cuban 
waters, and directing the President of the United States to use 
the land and naval forces of the United States to carry these 
resolutions into effect,' the President is hereby authorized to 
* leave the government and control of the island of Cuba to its 
people' so soon as a government shall have been established in 
said island under a constitution which, either as a part thereof 
or in an ordinance appended thereto, shall define the future rela- 
tions of the United States with Cuba, substantially as follow : " 

Among the promises defining the relations of the United States 
with Cuba the seventh is as follows : 

" That to enable the United States to maintain the independence 
of Cuba, and to protect the people thereof, as well as for its own 
defense, the government of Cuba will sell or lease to the United 
States lands necessary for coaling or naval stations at certain 
specified points, to be agreed upon with the President of the 
United States." (31 U. S. Stat. L.. 895.) 

The articles of this amendment became an appendix to the con- 
stitution of Cuba promulgated on the 20th of May, 1902. By an 
agreement between the United States and Cuba, February 16-23, 
1903, the Republic of Cuba leased certain areas in Guantanamo 
and in northern Cuba to the United States for the purposes of 
coaling and naval stations. In regard to Article I of this agree- 
ment, which defines the areas leased, the second and third articles 
of the agreement say : 

" Article II. 

" The grant of the foregoing article shall include the right to 
use and occupy the waters adjacent to said areas of land and 
water, and to improve and deepen the entrances thereto and the 
anchorages therein, and generally to do any and all things neces- 
sary to fit the premises for use as coaling or naval stations only, 
and for no other purpose. 

" Vessels engaged in the Cuban trade shall have free passage 
through the waters included within this grant. 

102 Cuba Neutral. 

"Article III, 

" While on the one hand the United States recognizes the con- 
tinuance of the ultimate sovereignty of the Republic of Cuba over 
the above-described areas of land and water, on the other hand 
the Republic of Cuba consents that during the period- of the occu- 
pation by the United States of said areas under the terms of this 
agreement the United States shall exercise complete jurisdiction 
and control over and within said areas, with the right to acquire 
(under conditions to be hereafter agreed upon by the two Govern- 
ments) for the public purposes of the United States any land or 
other property therein by purchase or by exercise of eminent 
domain, with full compensation to the owners thereof." 

These areas, commonly called Guantanamo and Bahia Honda,. 
are therefore leased to the United States and not ceded. The 
United States, therefore, has only a qualified jurisdiction over 
these regions and not sovereignty, as in Porto Rico and the 
Philippines, and the conditions of exercise of jurisdiction in these 
leased areas are accordingly unlike the conditions within the 
areas over which the United States exercise sovereignty. 

The exercise of jurisdiction in leased areas varies according 
to the provisions of the lease. 

By the terms of the lease between the United States 
and the Republic of Cuba, signed July 2, 1903 : 

Article I. The United States of America agrees and covenants 
to pay to the Republic of Cuba the annual sum of two thousand 
dollars, in gold coin of the United States, as long as the former 
shall occupy and use said areas of land by virtue of said agree- 

Art. V. Materials of all kinds, merchandise, stores and muni- 
tions of war imported into said areas for exclusive use and con- 
sumption therein shall not be subject to payment of customs 
duties nor any other fees or charges, and the vessels which may 
carry same shall not be subject to payment of port, tonnage, 
anchorage, or other fees, except in case said vessels shall be 
discharged without the limits of said areas; and said vessels 
shall not be discharged without the limits of said areas otherwise 
than through a regular port of entry of the Republic of Cuba, 
when both cargo and vessel shall be subject to all Cuban customs 
laws and regulations and payment of corresponding duties and 

It is further agreed that such materials, merchandise, stores 
and munitions of war shall not be transported from said areas 
into Cuban territory. 

Art. VI. Except as provided in the preceding article, vessels 
entering into or departing from the Bays of Guantanamo and 

Conventional Agreements. 103 

Bahia Hondo, within the limits of Cuban territory, shall be sub- 
ject exclusively to Cuban laws and authorities, and orders emanat- 
ing from the latter in all that respects port police, customs or 
health, and authorities of the United States shall place no ob- 
stacle in the way of entrance and departure of said vessels, except 
in case of a state of war. (Treaties and Conventions between 
the United States and Other Powers, 1770-1909, Vol, I, p. 360.) 

By the convention of May 22, 1903, which was pro- 
claimed July 2, 1904, the relations of the United States 
and Cuba were defined according to the terms of the 
Piatt amendment of March 2, 1901, as follows: 

I. That the Government of Cuba shall never enter into any 
treaty or other compact with any foreign power or powers which 
will impair or tend to impair the independence of Cuba, nor in 
any manner authorize or permit any foreign power or powers 
to obtain by colonization or for military or naval purposes or 
otherwise lodgment in or control over any portion of said island. 

II. That said Government shall not assume or contract any 
public debt, to pay the interest upon which, and to make reason- 
able sinking fund provision for the ultimate discharge of which, 
the ordinary revenues of the island, after defraying the current 
expenses of government, shall be inadequate. 

III. That the Government of Cuba consents that the United 
States may exercise the right to intervene for the preservation 
of Cuban independence, the maintenance of a government adequate 
for the protection of life, property, and individual liberty, and for 
discharging the obligations with respect to Cuba imposed by the 
treaty of Paris on the United States, now to be assumed and 
undertaken by the Government of Cuba. 

IV. That all acts of the United States in Cuba during its 
military occupancy thereof are ratified and validated, and all 
lawful rights acquired thereunder shall be maintained and pro- 

V. That the Government of Cuba will execute, and as far as 
necessary extend, the plans already devised, or other plans to be 
mutually agreed upon, for the sanitation of the .cities of the 
island, to the end that a recurrence of epidemic and infectious 
diseases may be prevented, thereby assuring protection to the 
people and commerce of Cuba, as well as to the commerce of the 
southern ports of the United States and the people residing 

VI. That the Isle of Pines shall be omitted from the proposed 
constitutional boundaries of Cuba, the title thereto being left to 
future adjustment by treaty. 

VII. That to enable the United States to maintain the inde- 
pendence of Cuba and to protect the people thereof, as well as 

104 Cuba Neutral. 

for its own defense, the Government of Cuba will sell or lease 
to the United States lands necessary for coaling or naval stations 
-at certain specified points to be agreed upon with the President 
of the United States. 

VIII. That by way of further assurance the Government of, 
Cuba will embody the foregoing provisions in a permanent treaty 
with the United States. (31 U. S. Stat. L., p. 895; Treaties and 
Conventions, 1776-1909, Vol. I, p. 362.) 

The above provisions were also embodied in the Cuban 
constitution of 1901, which was promulgated May 20, 
1902, on which date the United States withdrew " as an 
intervening power." The articles contain the provisions 
bearing on the relations of the United States and Cuba 
so far as concern the international conditions under con- 

The first article limits the right of Cuba to make com- 
pacts with foreign powers which will impair Cuban 
independence or to alienate control of territory. 

The second article limits the power to incur indebted- 

The third article gives the United States right to in- 
tervene to preserve Cuban independence and maintain 
orderly government. 

Articles 4, 5, 6, and 8 have no particular bearing on the 
situation under consideration. 

Article 7 provides for the sale or lease to the United 
States of lands for coaling or naval stations.- 

Undoubtedly the United States has by this and other 

agreements acquired a certain control over Cuba. The 

intention of the Republic of Cuba was to confine the 

grant of privileges and rights to the United States by 

a strict and narrow interpretation. The message of the 

President of Cuba of November 2, 1903 ; says — 

•of two formulas of grant, " sale or lease " — of portions of 
territory to which the United States had the right for the estab- 
lishment of naval and coaling stations — the one that would least 
wound Cuban sentiment was accepted. Of such stations we 
granted the least number possible, and the conditions inserted in 
the convention regulating the lease of the same are so many 
more limitations of that grant, all favorable to the Republic of 
Cuba. (U. S. Foreign Relations, 1903, p. 365.) 

Conventional Agreements. 105 

Importation of war materials. — Article 5 of the lease 
of 1903 provides that supplies and munitions of war shall 
not be subject to customs and other dues if destined for 
exclusive use in the leased area and discharged therein. 
Discharge at other points makes such goods liable to 
regular customs laws. 

The United States is therefore specifically prohibited 
the enjoyment of exceptional advantages in respect to 
other ports than those held under lease and has no excep- 
tional advantages elsewhere for importation of supplies 
for the leased areas. 

Interpretation of lease. — The legal consequences which 
flow from a lease are not such as follow the transfer of 
sovereignty. If a State, the neutrality of which is guar- 
anteed or whose jurisdiction over a certain area is in any 
way qualified as a State, should lease a part of the area, 
the lease would carry with it only such rights as the 
lessor was competent to grant according to the maxim 
" nemo plus juris in alteram transferre protest, quam ipse 
habet." Such leases are, therefore, strictly construed. It 
is conceivable that a State which has made a lease of 
a part of its territory to a foreign State might go to 
war with the State which held the lease or it might re- 
main neutral. In the event of neutrality, however, the 
leased territory under the jurisdiction of the belligerent 
would, according to its character, be liable to the conse- 
quences of war. If the leased territory was merely for 
the purpose of a scientific experiment station, a hospital, 
or lighthouse, it would be liable to treatment as such; if 
a naval base or fortification, its liability would corre- 
spond. If the lease was made in good faith and not 
during a war, with the purpose of furnishing the belliger- 
ent with a base, the lessor State would not be violating 
any obligation. 

The United States in its leased territory is entitled to 
the privileges and bound by the obligations of the leases. 
In the case of Cuba certain international negotiations 
may be carried on by the Cuban Government without 
consideration of the United States. The Cuban Army 
may be organized in accord with Cuban desires. Cer- 

106 Cuba Neutral. 

tain, acts which might imperil the existence of Cuba as 
a State may not be undertaken because prohibited by the 
treaty with the United States. 

The Ionian Islands. — Article I of the treaty of Paris of 
November 5, 1815, between " Great Britain and Austria, 
Prussia, and Russia, respecting the Ionian Islands," pro- 
vides that certain named islands " shall form a single, 
free, and independent State, under the denomination of 
the United States of the Ionian Islands." 

Article II provides that — 

This State shall be placed under the mandate and exclusive 
protection of His Majesty the King of the United Kingdom of 
Great Britain and Ireland, his heirs and successors. 

The remaining articles provide for the exercise of this 
right of protection, Article V stating: 

In order to insure, without restriction, to the inhabitants of the 
United States of the Ionian Islands the advantages resulting from 
the high protection under which these States are placed, as well 
as for the exercise of the rights inherent in the said protection, 
His Britannic Majesty shall have the right to occupy fortresses 
and places of those States and to maintain garrisons in the same. 
The military force of the said United States shall also be under 
orders of the commander in chief of the troops of His Britannic 

And in Article VII : 

The trading flag of the United States of the Ionian Islands shall 
be acknowledged by all the contracting parties as the flag of a 
free and independent State. (I Hertslet, Map of Europe by 
Treaty, pp. 337-341.) 

In 1854, during the Crimean War, while the above 
treaty was still in effect and Great Britain at war with 
Kussia, certain Ionian ships were captured by British 
cruisers on the ground that " being British subjects they 
were illegally trading with the enemy." This raised the 
question " whether the inhabitants of the Ionian Islands 
were to be considered as British subjects or not." The 
question was elaborately argued and came before Dr. 
Lushington for judgment. 

For the purposes of decision the vessel proceeded 
against was an Ionian vessel under the Ionian flag bound 

Ionian Islands. 107 

for a Eussian port and captured by a British cruiser. It 
was claimed "that as regards a power hostile to Great 
Britain the Ionian islanders stand in the same position 
as British subjects." As the Ionian Islands had not de- 
clared war, the further question arose " whether, Great 
Britain being at war with Russia, it follows as an in- 
evitable consequence that the Ionian States are placed at 
war with Russia also. * * * Whether, Great Brit- 
ain being at war with Russia, the Ionian States are ex 
necessitate at war also, exactly in the same way as Jersey, 
Guernsey, Jamaica, and Canada would be placed in hos- 
tility by a declaration of war against Great Britain by 
any other power." (2 Spinks, Ecclesiastical and Ad- 
miralty Reports, pp. 212, 216.) Dr. Lushington main- 
tained that while Great Britain, as a result of her con- 
quests in 1815, might have made a different disposition of 
the Ionian Islands, she did actually determine their status 
by the treaty of 1815, and Dr. Lushington adds that he 
is of the opinion that no right remained to Great Britain 
other than " can be found within the four corners of that 
treaty. * * * From this document must be derived 
all the rights of the contracting parties and all the rights 
and obligations of her Ionian States." 

Dr. Lushington maintains that Great Britain by the 
treaty had extreme rights over the Ionian Islands. He 

I will now make a short summary of this treaty ; it will show 
some of the anomalies. A single, free, and independent State, hav- 
ing the flag of a free and independent State — the military, naval, 
and diplomatic power all vested in the protecting State — the pro- 
tected, not the subjects of the protector, nor British subjects, 
for that is perfectly clear. (Ibid., p. 220.) 

Application of Dr. Lushing ton's reasoning. — The case 
of the Ionian ships offers certain parallels which make it 
possible to apply Dr. Lushington's reasoning to the re- 
lations between the United States and Cuba. The rela- 
tions between the United States and Cuba are far less 
close than were those between Great Britain and the 
Ionian States; therefore Dr. Lushington's conclusions 
would in general apply more emphatically to the rela- 

108 Cuba Neutral. 

tions of the United States and Cuba. He maintains that 
war between a protecting and a foreign State does not 
necessarily involve the protected State in war. He fur- 
ther concludes that if Great Britain had a right to make 
a declaration of war involving the Ionian States, this 
could not be done without express statement; and that 
hostile character could not be imposed upon the protected 
State in absence of an agreement whose terms were not 
open to doubt. Dr. Lushington restored the captured 
property as not concerned in the war. Cuba and Cuban 
property in time of war between the United States and 
a foreign power would, according to the treaty between 
the United States and Cuba, be less closely related to the 
war than was the Ionian property in 1854. 

Application of Declaration of London. — In this situa- 
tion it is granted that the Declaration of London is bind- 
ing. While the Declaration had not been proclaimed up 
to July, 1912, the principles of the Declaration were 
accepted by Italy as binding in the Turco-Italian War 
of 1911-12. The Italian attitude is shown as follows : 

By a royal decree of October 13 the following instructions were 
approved in conformity with the principles of the Declaration of 
Paris, April 16, 1856, which belligerent countries are bound to 
respect, with the rules of The Hague Conventions of October 18, 
1907, and of the Declaration of London of February 26, 1909, 
which the Government of the King desires to be respected as 
well, so far as the provisions of the laws in force in the Kingdom 
allow, although they have not yet been ratified by Italy; and 
they will serve to regulate the conduct of naval commanders in 
the operations of capture and prize during the war. (Dispatch to 
U. S. State Dept, Oct. 19, 1911.) 

From the action of Italy it may be inferred that even 
if not ratified the Declaration of London will be regarded 
as the most satisfactory available statement of the prin- 
ciples of international law relating to maritime capture. 
It is admitted in this situation that supplies of the con- 
traband are being carried by merchant vessels of a neu- 
tral State to Habana, when they may be sent by rail to 
Guantanamo, which is a naval station of the United 
States. Under the rules prevailing in regard to continu- 
ous voyage before the Declaration of London, such a 

Application of Declaration of London. 109 

cargo might be regarded, according to the practice of 
the United States, as conditional contraband, but the op- 
position of other States to the position of the United 
States led to the abandonment of this position in 1909, 
provided the Declaration of London should be ratified. 

Article 35 of the Declaration of London and the general 
report upon the same shows that conditional contraband 
is not liable to capture under the declaration if destined 
for discharge in a neutral port. 

Aeticle 35. — Conditional contraband is not liable to' capture, 
except on board a vessel ivhich is bound for territory belonging 
to or occupied by the enemy, or for the armed forces of the enemy, 
and which is not to discharge it at an intervening neutral port. 

The ship's papers are conclusive proof both as to the voyage 
on ivhich the vessel is engaged and as to the port of discharge of 
the goods, unless she is met %oith clearly out of the course indi- 
cated by her papers, and unable to give adequate reasons to 
justify such deviation. 

As lias been said above, the doctrine of continuous voyage is 
excluded for conditional contrabrand. This then is liable to 
capture only if it is to be discharged in an enemy port. As soon 
as the goods are documented to be discharged in a neutral port 
they can not be contraband, and there is no examination as to 
whether they are to be forwarded to the enemy by sea or land 
from that neutral port. This is the essential difference from 
absolute contraband. 

The ship's papers furnish complete proof as to the voyage of 
the vessel and as to the place of discharge of the cargo; it would 
be otherwise if the vessel were encountered having manifestly 
deviated from the route which she should follow according to 
her papers, and unable to give sufficient reasons to justify such 

This rule as to the proof furnished by the ship's papers aims 
to prevent claims lightly raised by a cruiser and giving rise to 
unjustifiable captures. It must not be understood in a manner 
too absolute which would make all frauds easy. Thus it does not 
hold good when the vessel is encountered at sea having mamU 
festly deviated from the route which she ought to have followed, 
and unable to justify such deviation. The ship's papers are then 
contradicted by the actual facts and lose all value as evidence; 
the cruiser will be free to decide according to the case. In the 
same way, the visit and search of the vessel may reveal facts 
which prove in an irrefutable manner that the destination of 
the vessel or the place of discharge of the goods is incorrectly 
entered in the ship's papers. The commander of the cruiser is 

110 Cuba Neutral. 

then free to judge of the circumstances and captures or does not 
capture the vessel according to his judgment. To resume, the 
ship's papers are proof, unless the facts show their evidence to 
be false. This limitation of the value of the ship's papers as 
proof seems self-evident and not to need special mention. It has 
not been the aim to appear to weaken the force of the general 
rule, which forms a safeguard for neutral trade. 

Because a single entry is shown to be false, it does not follow 
that the force of the ship's papers as evidence is nullified as a 
whole. The entries against which no allegation of fraud can be 
proved retain their value. (International Law Topics — Naval 
War College— 1909, p. 85.) 

British opinion, — Norman Bentwich, discussing the 
operation of article 35 from its application particularly 
to Great Britain, says : 

But when the enemy country has ports of its own the exclusion 
of the doctrine of continuous voyage from the subject of condi- 
tional contraband is justified by reason of the nature of the 

One might judge from the comments of some critics of the 
declaration that this limitation of the right to capture conditional 
contraband was an outrageous curtailment of our belligerent 
rights. Yet, in fact, we have never effectually exercised the right 
to capture cargoes on their way to the enemy country via neu- 
tral ports, even when they were absolute contraband; and Lord 
Stowell explicitly and emphatically repudiated the practice. The 
declaration now entitles us to do so in that contingency, but 
rejects the claim which has been advanced by others to capture 
cargoes of conditional contraband which are destined to neutral 
ports. It is submitted that the limitation of the right of capture 
is both reasonable and to our benefit. Conditional contraband 
cargoes are ex hypothesi such as might be regularly required by 
the neutral population, and it would always be possible for the 
consignor to direct them in the first place to a neutral consignee 
in the neutral country, who might forward them at a favorable 
opportunity to the belligerent country. And to allow capture 
upon suspicion that an eventual belligerent destination was in- 
tended would be an excessive interference with neutral trade, 
which would inevitably cause friction. Cargoes of absolute con- 
traband, on the other hand, being of such things as are exclu- 
sively valuable in war, would probably find their way, in nine 
out of ten cases, from a neighboring neutral to a belligerent 
country; and therefore capture is allowed, though their immedi- 
ate destination is seemingly innocent, when there is evidence that 
this is not the final destination. The effect of the restriction of 
capture in cases of conditional contraband would be. if we were 

British Opinion. HI 

at war, to give immunity to all cargoes of the kind consigned to 
England via neutral ports, and to render them liable to capture 
only during their transit of the narrow seas which separate us 
from our continental neighbors, some of whom are in any case 
likely to be neutral. Hence, while the restriction would dimin- 
ish our power of capturing conditional contraband destined for 
a continental enemy in very exceptional circumstances only, it 
would regularly benefit us when at war by diminishing his 
power of interfering with our supplies which must be brought 
by sea. The present practice of nations has not hitherto defi- 
nitely accepted the doctrine of continuous voyage in its relation 
to contraband; as has been mentioned, the American courts put 
it into force amid protests during the Civil War, and England 
claimed to enforce it during the Boer War, but did not press her 
claim because of German opposition to it. The declaration as- 
sures us the benefit of the doctrine as belligerents in regard to 
absolute contraband, which is the trading by the neutral that 
more seriously assists in war; and it secures us both as belliger- 
ents and neutrals against any attempt by a foreign power to apply 
the doctrine to other neutral cargoes. (The Declaration of Lon- 
don, p. 75.) 

Protection by the fleet of the United States. — In the 
proposed situation the merchant vessel of State Y which 
is neutral requests protection from the fleet of the United 
States which is belligerent. The commanding officer re- 
plies that he has no authority to afford this protection. 
To afford such protection would usually be outside the 
competence of a naval officer unless instructed or acting 
under treaty provisions. If the United States fleet 
should afford protection the act would be of the nature 
of belligerent convoy. A neutral vessel which accepts 
belligerent convoy loses her neutral character according 
to the present general consensus of opinion. 

The neutral vessel may not itself resist visit and search, 
but by sailing under the protection of a belligerent there 
is on the part of the neutral vessel a constructive resist- 
ance which would make the vessel liable to condemnation 
even though otherwise innocent. It is not to be inferred 
that any action which the United States fleet might take 
in pursuing the enemy in the neighborhood or in attempt- 
ing to prevent interference with commerce if in the 
nature of the prosecution of the war and not simply an 
act of convoy, would necessarily involve the merchant 

112 Cuba Neutral. 

vessel in any liability. As the merchant vessel might 
become liable to more severe treatment if accorded pro- 
tection by the United States fleet and as the United States 
fleet could attack the enemy, in any case, if deemed at the 
time a proper military movement there would seem to be 
nothing to be gained for the United States fleet or for the 
merchant vessel in extending the protection requested. 

Relation of State Y .— The capture of the merchant ves- 
sel of State Y which is carrying goods of the nature of 
conditional contraband to Habana would, as has been 
shown, not be justified under the provisions of the Decla- 
ration of London, which is assumed to be binding, unless 
Habana is regarded as a belligerent port when the United 
States is at war. As Cuba is an independent State in the 
family of nations, and as it has not made any alliance 
which makes it a party to a war in which the United 
States is involved, Cuba's relations would be those of a 
neutral State and Habana would be a neutral port. 

Resume. — From the consideration of the nature of 
leased territory it is seen that the belligerency of the 
lease-holding State does not affect the relations of the 
State which grants the lease except so far as is stated in 
the lease. 

The jurisdiction over the leased territory is determined 
by the terms of the lease. A protecting State may go to 
war without involving the State protected in hostilities. 
The relations between the United States and Cuba are 
such that Cuba may remain neutral in a war to which the 
United States is a party in the same manner as Mexico 
might remain neutral. 

The mere fact of proximity to the United States would 
in both cases make necessary somewhat greater care in 
the preservation of neutrality. Conditional contraband 
would not, under the declaration of London, when bound 
for a neutral port on a neutral vessel be liable to capture. 
The extension of protection to a neutral merchant vessel 
by a belligerent war vessel would make an innocent 
merchant vessel liable to penalty. It would be best to 
allow the neutral State to protect its own merchant ves- 

Solution. 113 

sels and the interest of all States not engaged in the war 
would tend to cause the belligerents to respect neutral 


Habana is not a hostile destination when the United 
States and State X are at war and other States are 

The position taken by the commanding officer of the 
fleet of the United States is correct. 

60252—12 8 

Situation IV. 


There is Avar between States X and Y. Other States 
are neutral. A merchant vessel of the United States is 
proceeding to a port of State Z and is 10 miles from any 
land, though at that distance from the coast of State X. 
A cruiser of State X approaches and warns the master 
of the merchant vessel that he must keep farther off the 
coast as this water is within the strategic area which has 
been proclaimed by the Government of X and is closed 
to all vessels. 

The master appeals to the commander of a cruiser of 
the United States to escort him through this area. The 
voyage would not bring the vessels within 5 miles of the 
coast of State X. 

What should the commander do ? 


The commander should decline to escort the merchant 
vessel through the strategic area. 

He should advise the master of the merchant vessel to 
keep clear of the strategic area. 


Opinion of Grotius. — Grotius very early advocated 
some form of control by a fleet over the area which it 
commanded. The words of Grotius are translated by 
Whewell as follows: 

The empire of a portion of the sea is, it would seem, acquired 
in the same way as other lordship; that is, as above stated, as 
belonging to a person, or as belonging to a territory : Belonging 
to a person, when he has a fleet which commands that part of 
the sea ; belonging to a territory, in so far as those who sail in 
that part of the sea can be compelled from the shore as if they 
were on land. (De Jure Belli ac Pacis, L. II, c. Ill, sec. 2.) 

General No tes. 115 

Phillimore in a measure follows Grotius. He says : 

The portion of sea actually occupied by a fleet riding at anchor 
is within the dominion of the nation to which the fleet belongs 
so long as it remains there; that is, for all purposes of jurisdic- 
tion over persons within the limits of the space so occupied. The 
like principle is applicable to the portion of territory occupied 
by an army, a fleet being considered as a maritime army. 

This proposition is of course not to be considered without ref- 
erence to the place of anchorage : A French fleet permitted to 
anchor in the Downs, or an English fleet at Cherbourg, would 
only have jurisdiction over the subjects of the respective countries 
which happen to be within the limits of their temporary occupa- 
tion of the water. Both in the case of the fleet and the army 
there is, according to the theory of the law, a continuation or 
prorogation of the territory to which they belong. (International 
Law, CCIII.) 

Area of war. — The area of hostilities is generally re- 
garded as limited to the belligerent jurisdiction and the 
open sea. On the open sea neutrals are liable to the 
consequences if they enter a field in which belligerent 
operations are at the moment going on, e. g., come into 
range during an actual battle between the fleets of the 
opposing belligerents. Otherwise, it has been generally 
supposed that the high seas were free to innocent neutral 
vessels in the time of war as in the time of peace, though 
in the time of war neutral vessels might be liable to 
visit and search. 

Blockaded area, — One of the other restrictions upon 
the movements of neutral vessels is imposed in the estab- 
lishment of blockade. The area of operations of the 
blockading force is under the provisions of the declara- 
tion of London of 1909, regarded as closed to neutral 
vessels under risk of seizure. It is not always possible 
to define the limits of this area. Formerly the area was 
not limited under American doctrine, but a seizure might 
be made at any point outside of neutral jurisdiction if a 
vessel were bound for a blockaded port. An attempt to 
explain and make more definite the area was made at 
the International Naval Conference in 1908-9. 

Aeticle 17. 'Neutral vessels are not to he captured for breach 
of blockade except within the area of operations of the ships 'of 
war detailed to render the blockade effective. 

116 Strategic Area on High Seas. 

The other conditions of the liability of a vessel to capture is 
that she be found within the radius of action of the warships 
assigned to maintain the blockade effective; it is not enough that 
she should be on her way to the blockaded port. 

As for what constitutes the radius of action, an explanation 
has been given which has been universally accepted, and which is 
reproduced here as furnishing the best commentary on the rule of 
article 17 : 

" When a Government decides to undertake blockading opera- 
tions against some part of the enemy coast it assigns a certain 
number of warships to take part in the blockade, and intrusts 
the command of these to an officer whose duty is to insure by 
this means the effectiveness of the blockade. The commander 
of the naval force thus formed distributes the ships placed at his 
disposal according to the configuration of the coast and the geo- 
graphical position of the blockaded places, and gives each ship 
instructions as to the part which she has to play, and especially 
as to the zone intrusted to her surveillance. It is all of the 
zones of surveillance together, organized in such manner that the 
blockade is effective, that form the radius of action of the blockad- 
ing naval force. 

"The radius of action so understood is closely connected with 
the effectiveness of the blockade, and also with the number of 
ships employed on it. 

" Cases may occur in which a single ship will be enough vo 
maintain a blockade effective — for instance, at the entrance of 
a port, or at the mouth of a river with a small estuary— on con- 
dition as circumstances allow the blockading ship to stay near 
enough to the entrance. In that case the radius of action is 
itself near the coast. But, on the contrary, if circumstances 
force her to remain far off, it may be that one ship would not be 
enough to secure effectiveness, and to maintain this it will then 
be necessary to add other ships. From this cause the radius of 
action becomes wider and more remote from the coast. It may 
therefore vary with circumstances and with the number of 
blockading ships, but it will always be limited by the condition 
that effectiveness must be assured. 

" It does not seem possible to assign limits to the radius of 
action in definite and unvarying figures any more than it is pos- 
sible to fix beforehand and invariably the number of ships neces- 
sary to assure the effectiveness of any blockade. These points 
must be determined according to circumstances in each particu- 
lar case of a blockade; perhaps it would be possible to do this 
at the time of the declaration. 

" It is evident that a blockade will not be established in the 
same way on a defenseless coast and on a coast possessing all 
modern means of defense. There would be no question in the 

Mined Areas. 117 

latter case of applying a rule such as that which formerly re- 
quired that ships should be stationary and sufficiently close to 
the blockaded places. The position would be too dangerous for 
the ships of the blockading force, which besides now possess more 
powerful means enabling them to watch effectively a much wider 
zone than formerly. 

" The radius of action of a blockading naval force may extend 
somewhat far, but as it depends on the number of ships con- 
tributing to the effectiveness of the blockade and is always lim- 
ited by the condition of effectiveness, it will never reach remote 
seas upon which merchant vessels sail which are perhaps des- 
tined for the blockaded ports, but whose destination is contingent 
on the changes which circumstances may produce in the blockade 
during their voyage. To sum up, the idea of the radius of action 
joined to that of effectiveness as we have tried to define it — that 
is to say, including the zone of operations of the blockading 
forces — allows the belligerent to exercise in an effective manner 
the right of blockade which is admitted to be his, and, on the 
other hand, it saves neutrals from exposure to the inconvenience 
of blockade at a great distance, while it leaves them free to run 
the risks to which they knowingly expose themselves by approach- 
ing points to which access is forbidden by the belligerent." 
(N. W. C. International Law Topics, 1909, pp. 49-53.) 

The definition of the area of operations of a blockade 
even if in such manner as to include a large range of 
high sea is regarded as a legitimate act of war, and the 
belligerent right is respected. The principle which is 
recognized is that the belligerent has the right to put 
pressure upon his opponent without interference by neu- 
trals. It is undoubtedly an inconvenience and may be 
a loss to neutral commerce to be excluded from the block- 
aded area, but it is a recognized consequence of war. 

Mined areas. — Warlike operations in recent years have 
been extended through the use of new means of warfare. 
The introduction of submarine mines as a means of war- 
fare immediately gave rise to the question of the area 
within which they might lawfully be used. The use of 
mines during the Russo-Japanese War in 1904-5 gave 
practical demonstration of the necessity of determining 
the regulation of the use of mines. Dr. Lawrence, then 
lecturer on international law at the British Royal Naval 
College, writing in 1904, when the events of the Russo- 
Japanese War were before the world, says : 

118 Strategic Area on High Seas. 

A discussion on a moot point of neutral procedure when navi- 
gating the high seas, leads naturally to a further discussion of 
certain matters connected with belligerent procedure in the open 
waters which are part of the common highway of all nations. 
The question, or rather the group of questions, to which we refer 
grew out of the sinking of the Japanese battleship Hatsuse by a 
marine mine on May 15, when she was cruising 10 miles southeast 
of Port Arthur, and therefore out on the high seas a considerable 
distance beyond Russian territorial waters. A month before, 
on April 13, a Russian battleship, the PetropavlovsJc, had been 
destroyed by a Japanese mine or mines. But as the catastrophe 
took place in the outer roadstead of Port Arthur, and at no very 
great distance from the shore, it was felt to be a legal, though 
terrible, incident of warfare. No one disputes the right of belliger- 
ents to lay mines in their own territorial waters or those of their 
foes as a means of strengthening the defenses of harbors or assist- 
ing attacks upon them. But when the area of destruction is ex- 
tended to the high seas, questions of legality immediately arise. 
The sinking of the Hatsuse was discussed at once by the press of 
the civilized world. The general impression seems to have been 
that the Russians created a mine field in the open sea, or deliber- 
ately turned mechanical mines adrift in all the waters to which 
they had access. Under the impression that these views were 
correct, Russian methods were vehemently denounced and Russian 
officers charged with a gross violation of international law. In 
the United States the chorus of condemnation was especially 
loud ; but the American Government wisely refrained from making 
representations before it was sure of the facts and instructed its 
naval attaches abroad to inquire into the matter. 

After discussing the available information in regard to 
the use of these mines, Lawrence says : 

We pass now from conjecture about fact to discussion about 
law. Immediately we find ourselves face to face with a difficulty 
which is serious in all legal systems, and specially serious in that 
which is called international law. There are no precedents. 
Mines are not new. They have been used on land since the intro- 
duction of gunpowder. But the first to employ them successfully 
at sea were the Confederates, who mined their harbors and blew 
up several of the attacking or blockading ships. This was in the 
American Civil War of 1861-1865 ; and since that time vast im- 
provements have been introduced in the apparatus of submarine 
defense. But though mining as an art has been revolutionized, the 
practice of it has been confined to the ports and territorial waters 
of belligerent powers. The recent case is the first in which a mine 
acted far out at sea. How is an unprecedented situation to be 
met in international law? (War and Neutrality in the Far East, 
2d ed., pp. 93-100.) 

Mined Areas. 119 

Prof. Holland in a letter to the Times May 23, 1904, 
said : 

The question raised in your columns by Admiral de Horsey 
with reference to facts as to which we are as yet imperfectly in- 
formed well illustrates the perpetually recurring conflict between 
belligerent and neutral interests. They are, of course, irrecon- 
cilable, and the rights of the respective parties can be defined 
only by way of compromise. It is beyond doubt that the theoreti- 
cally absolute right of neutral ships, whether public or private, 
to pursue their ordinary routes over the high seas in time of war 
is limited by the right of the belligerents to fight on those seas a 
naval battle, the scene of which can be approached by such ships 
only at their proper risk and peril. In such a case the neutral 
has ample warning of the danger to which he would be exposed 
did he not alter his intended course. It would, however, be an 
entirely different affair if he should find himself implicated in 
belligerent war risks, of the existence of which it was impossible 
for him to be informed, while pursuing his lawful business in 
waters over which no nation pretends to exercise jurisdiction. 

It is certain that no international usage sanctions the employ- 
ment by one belligerent against the other of mines or other secret 
contrivances which would, without notice, render dangerous the 
navigation of the high seas. (Letters on War and Neutrality, 
p. 131. ) 

These expressions of opinion were in accord with the 
ideas of the time, and it was natural that the subject of 
regulation of the use of mines should come before the 
Second Hague Conference of 1907. 

That the danger to neutrals was very great is evident 
from a declaration of the Chinese delegate at this con- 
ference : 

Le gouvernement chinois est encore aujourd'hui dans l'obliga- 
tion de munir les vaisseaux de sa navigation cotiere d'instruments 
speciaux pour repecher et detruire les mines flottantes qui encom- 
brent non seulement la mer libre mais encore ses eaux terri- 
toriales. Malgre toutes les precautions prises, un nombre tr§s 
considerable de navires de cabotage, de bateaux de peche, de 
jonques, et de sampans a sombre par suite de rencontres avec ces 
mines automatiques sous-marines, et ces vaisseaux se sont perdus 
corps et biens sans que les details de ces desastres soient parvenus 
au monde occidental. II est calcule que de cinq a six cents de 
uos nationaux qui vaguaient a leurs occupations pacifiques ont 
ainsi trouve une mort cruelle par suite de ces engins dangereux. 
(Deuxieine Conference Internationale de la Paix, Tome III, 
p. 663.) 

120 Strategic Area on High Seas. 

The discussion at The Hague in 1907 was long con- 
tinued and showed great differences of opinion. The 
conclusions reached were not unanimous. The conven- 
tion relative to the laying of automatic contact submarine 
mines which was at length agreed upon at The Hague 
covered the subject only in part. The area in which such 
mines may be placed is not defined, though the belligerent 
is " to notify the danger zone as soon as military exigencies 
permit," and " every possible precaution must be taken 
for the security of peaceful navigation." The prohibi- 
tion of mines off the coast of the enemy " with the sole 
object of intercepting commercial navigation " would 
have little effect. 

The Institute of International Law at Paris in 1910 
proposed the following rule : 

Article 1. It is forbidden to place in the open sea automatic 
contact mines whether or not anchored, the question of mines 
controlled by electricity being reserved. 

It is clear that, even though as shown by the vote of 
the Institute of International Law in 1910, the opinion 
seems to be drifting toward a limitation of the area 
within which mines may be used, yet there is up to the 
present no conventional limitation. 

Straits in time of war. — There have been many con- 
tentions for the maintenance by the coast state of suprem- 
acy over straits. The Danish Sound was long regarded 
as within the control of Denmark. The Baltic Sea was 
by conventional agreement closed to hostilities by other 
States than those bordering upon its waters. Great 
Britain early in the nineteenth century denied that this 
sea was closed to hostilities. The passage of the Bos- 
phorus and Dardanelles has been subject to regulation, 
and sometimes entirely closed. The question of using 
submarine mines in straits was raised at the Second 
Hague Conference. The Dutch delegate proposed "En 
tous cas les detroits, qui unissent deux mers libres ne peu- 
vent pas etre barres." (Deuxieme Conference de la Paix, 
Tome III, p. 661.) After much discussion the com- 
mittee decided to suppress provisions concerning straits 

News Gathering Agencies. 121 

with the distinct understanding that their status was not 
affected by the convention relative to the laying of auto- 
matic contact submarine mines. 

This convention is fully recognized as only a first step. 
The opinions of the delegations from some of the larger 
States were far from harmonious. Great Britain, gen- 
erally in favor of restriction, was not averse to extending 
the mine field to a distance of 10 miles from the position 
of guns on land. 

News-gathering agencies. — Another attempt to extend 
the area from which those not engaged in the hostilities 
may be excluded appears in the attempt to regulate news- 
gathering agencies. Correspondents were formerly taken 
with military expeditions as a matter of course. The 
dangers of such a course were not clearly evident till 
shown in the Spanish-American War of 1898. At that 
time the improved means of communication made it pos- 
sible for the news of the movements of the forces, actual 
or contemplated, to become public in such manner as 
seriously to inconvenience those responsible for their suc- 
cess. During the Kusso-Japanese War of 1901^5 the use 
of wireless telegraphy greatly increased the facility with 
which news could be sent from the area of operations or 
from the neighborhood. A corresponding control of the 
agencies for the diffusion of information is essential to 
the success of belligerent operations. A consideration of 
the physical possibilities, of the military necessities, and 
of the rights of the belligerents and neutrals would seem 
to support the conclusions of the Institute of Interna- 
tional Law in 1906 : 

Aet. 6. Sur la haute mer, dans la zone qui correspond h la 
sphere d'action de leurs operations rnilitaires, les belligerants 
peuvent empecher les emissions d'ondes, meme par une sujet 
neutre. (21 Annuaire de l'lnstitut, p. 327.) 

Such a rule as the above, demanded by the necessities 
for effective conduct of the war, may bear heavily upon 
a neutral in a special case, but that the war be conducted 
effectively and be brought to a speedy close would be for 
the general advantage, and the conditions conducing to 
that end should prevail. 

122 Strategic Area on High Seas. 

Japanese ordinance, 1904. — In accord with Imperial 
Ordinance No. 11, promulgated January 23, 1904, the 
Japanese minister of the navy, or in case of necessity a 
subordinate official, might designate a " defense sea area * 7 
or " strategical area " from which vessels might be ex- 
cluded, even by force of arms, or within which the move- 
ments of vessels might be regulated. 

Imperial Ordinance No. 11, 1904. 

[Promulgated Jan. 23, 1904.] 


Article 1. In case of war or emergency, the minister of the 
navy may, limiting an area, designate a defense sea area under 
this ordinance. The designation, or revocation, of such defense 
sea area shall be advertised by the minister of the navy. 

Art. 2. In case of urgent necessity, the commander in chief 
of a naval station, or the commandant of a secondary naval sta- 
tion, may make the designation mentioned in the preceding article. 
In this case the designation or its revocation shall be advertised 
by the commander in chief or the commandant. 

Art. 3. In the defense sea area, the ingress and egress and pas- 
sage of any vessels other than those belonging to the army or 
navy are prohibited from sunset to sunrise. 

Art. 4. Within the limits of naval and secondary naval ports 
included in a defense sea area the ingress and egress and passage 
of all vessels other than those belonging to the army or navy 
are prohibited. 

Art. 5. All vessels which enter, leave, pass through, or anchor 
in a defense sea area shall obey the direction of the commander 
in chief of the naval station, or the commandant of the secondary 
naval station, concerned. 

Art. 6. The commander in chief of a naval station, or the com- 
mandant of a secondary naval station, may, when he thinks neces- 
sary, forbid or limit within a defense sea area fishing, taking of 
seaweeds, or any other act considered to interfere with military 

Art. 7. The commander in chief of a naval station, or the com- 
mandant of a secondary naval station, may absolve vessels, which 
he thinks fit, from the whole or a part of the prohibitions or 
limitations mentioned in this ordinance. 

Art. 8. Any vessel which has transgressed this ordinance, or 
orders issued under this ordinance, may be ordered to leave the 
defense sea area by a route which shall be designated. 

Japanese Rules, 190 If. 123 

Regarding vessels which do not obey the order mentioned in 
the preceding paragraph, armed force may be used when 

Art. 9. The master of a vessel, or a person acting as such, 
which has violated any rules of articles 3 to 5, inclusive, will be 
punished with confinement at hard labor for not more than one 
year, or with a fine of not more than yen 200. 

Art. 10. Persons who have violated the prohibition or limita- 
tion of article 6 will be punished with confinement at hard labor 
for not more than six months, or with a fine of not more than 
yen 100. 


This ordinance takes effect from the date of promulgation. 

Regulations, Japenese strategical areas, 1901^—5. — The 
regulations governing movements of vessels within 
" strategical areas " varied according to the area which 
was under the regulation. The notification of the estab- 
lishment of these areas was made in the Official Ga- 
zette. Twelve or more of such areas were established; 
about bays, as at Tokyo; about islands, as the Pescadores; 
in the neighborhood of naval stations, as Sasebo; or 
covering straits, as Taugaru Straits. 

The minister of the United States to Japan forwarded 
the following on January 13, 1905, to the Secretary of 
State : 

,No. 168. American Legation, 

Tokyo, January 13, 19G5. 

Sir : I have the honor to inclose herewith a copy of a transla- 
tion of the notification issued by the commander of the naval 
station at Mokyu, in the Pescadores, relative to navigation through 
the defensive sea area at Kelung. 

This notification was promulgated in the Formosan Official 
Gazette the 24th ultimo and has just reached this legation from 
the consulate at Daitotei. 

I have, etc., 

Lloyd Griscom. 



The commander of the naval station at Mokyu (Pescadores) has 
issued the following instructions to vessels traversing the de- 
fensive sea area at Kelung. 

124 Strategic Area on High Seas. 

Article 1. Matters relating to the defensive sea area at Kelung 
are under the direction of the commander of the temporary 
Kelung submarine detachment. 

Art. 2. Vessels other than those employed in the Government 
service or the regular mail steamers wishing to traverse the de- 
fensive sea area must first obtain permission from the commander 
of the temporary Kelung submarine detachment. 

Art. 3. Vessels not in the service of the army or navy before 
passing or traversing the defensive sea area between the hours of 
sunset and sunrise must obtain permission from the commander 
of the temporary Kelung submarine detachment. 

Art. 4. While passing through the defensive sea area vessels 
must not exceed a speed of 5 nautical miles per hour. 

Art. 5. Excepting in the districts in which permission has beeu 
given by the commander of the temporary Kelung submarine de- 
tachment, fishing is prohibited within the defensive sea area. 

Art. 6. In case it is deemed necessary the commander of the 
temporary Kelung submarine detachment may designate the 
anchorage for vessels or may limit or prohibit their passage or 
mooring for a time. 

The rules governing the areas are shown by the fol- 
lowing statements in regard to different areas : 

[Inclosure 3 — Translation.] 


[Issued by the commander in chief of the Yokosuka naval station.] 

Article 1. Vessels passing in or out of Tokyo Bay shall stop 
their course before they arrive, the former at the line connecting 
Chiyo-ga-saki on the south side of Uraga Harbor and Kokubo- 
hana of Awa Province, and the latter at the line connecting Natsu- 
Shinia and the sea fort No. 2, and shall signal their names, make 
the following signals, and wait the arrival of the guide boat : 

1. Steamers shall hoist the signal " want pilot," and at the same 
time shall repeat whistles. < 

2. Sailing vessels shall hoist the signal " want pilot " and blow 
signal horn. 

Art. 2. In response to the above signals the guide boat shall 
hoist the "response" flag of the international signal code. 

When any vessel is to be allowed freedom of movement the 
guide boat shall haul down the " response " flag. 

Art. 3. The guide boat shall carry at its masthead the pilot 
flag (white upper, red lower) of the special signals to be used 
for British vessels as mentioned in the international signal code. 

Japanese Rules, 190 h. 125 

Art. 4. In passing through the area vessels shall not proceed at 
a speed of more than 5 knots. 

Art. 5. No vessels are allowed to cast anchor in any part of 
the area, except in Uraga Harbor. 

Art. 6. Fishing and the taking of sea weeds within the area are 

Art. 7. When necessary, passage of vessels may for a time be 
prohibited within the area. 

Art. 8. Vessels of less than 20 tons gross or less than 200 
" koku," or boats or other craft solely or mainly propelled by 
oars, may traverse the area without observing the provisions of 
article 1, subject to such restriction as may at any time be 

Art. 9. Vessels passing the area at night in violation of article 
7, shall do so at the risk of being tired upon by torpedo boats or 
patrol boats. 

N. B. — The regulations for the strategical sea areas of Hako- 
date and of Otaru are practically the same- as above. 

[In closure 4. — Translation.] 


[Issued by the commander in chief of Sasebo.] 

Article 1. Vessels which pass in, out of, or anchor in the 
strategical sea area shall first stop at one of the two places men- 
tioned below, and shall receive from the guard vessel stationed 
for the purpose directions concerning their movements, beacons, 
and signals, etc. 

This rule shall not apply to vessels belonging to persons liv- 
ing on the coast of the sea area. 

Art. 2. The places where vessels are required to stop are : 

1. When entering the harbor, 1 mile north of Io-jima light- 

2. When leaving the harbor, one-half mile east of Takahoko- 

Art. 3. The guard vessel shall be stationed near the two above- 
mentioned places, and shall carry at its masthead the national 
flag by day and two white lights abreast at night. 

Art. 4. The guide boat which shall pilot vessels passing the 
area shall carry at its masthead the pilot flag (white upper, red 
lower) of special signals to be used for British vessels as given 
in the international signal code. 

Art. 5. Fishing and the taking of seaweeds within the area are 
forbidden, except with the permission of the commander in chief 
of the naval station. 

Art. 6. The sea area is under the charge of the commanding 
officer of the Nagasaki mining corps. 

126 Strategic Area on High Seas. 

[Inclosure 5. — Translation.] 


Article 1. Vessels passing the Ki-Tan Strait strategical sea 
area shall hoist the national flag and signal their names given 
in the list of merchant marine, and. at night shall carry lights, 
as required by the rules of the road. 

Art. 2. Vessels other than those belonging to the navy or army 
and those that have obtained permission in accordance with these 
regulations are prohibited from passing the area. 

Art. 3. Vessels passing the area shall stop at the examination 
station, and after examination and inspection by the guard vessel, 
shall proceed, hoisting the signal required. 

Art. 4. When it is deemed unnecessary to examine any vessel, 
and she is to be allowed freedom of movement, the guard vessel 
will signal the fact by hoisting the " answering " and "A" signal 
of the international code, and at night by showing one blue light. 

Art. 5. Sailing vessels of less than 20 tons, gross, or of less 
than 200 " koku," and other craft principally or solely propelled 
by oars need not stop at the examining station unless ordered to 
do so. 

Art. 6. Small vessels mentioned in the preceding article may 
fish within the area by day ; but the guard vessel may prohibit 
them when necessary. 

Art. 7. Vessels passing the area shall stop during rain or mist, 
when the landmarks can not be seen, until weather clears. 

Art. 8. Vessels permitted to pass Ki-Tan Straits between sun- 
set and sunrise must take the channel between Awaji and Oki- 

Art. 9. Vessels which are compelled to pass the area at night 
shall apply to the commander in chief of the Kure naval station 
for a permit, stating the reason, certified by the local authorities. 

Art. 10. The examination station is about 5 miles south of the 
Oki-no-Shima Lighthouse. 

In several areas the boundaries seem to have run out- 
side the 3-mile limit and even 1.0 miles from land seems 
to have been included in some instances. The straits 
connecting open seas were also included. It is generally 
held that straits connecting open seas are not to be 

Case in Russo-Japanese War. — The entrance of a ves- 
sel flying the French flag, the Quang-nam, to the " pro- 
tected sea area " about the Pescadores Islands during the 
Eusso-Japanese War in 1905 gave rise to a reference to 

Case in Russo-Japanese War. 127 

that " area." The main statement of the attorney for the 
petitioner was: 

The steamship Quang-nam, being the property of the China 
Coast Voyage Co., located at Paris, France, runs between Saigon, 
Manila, Philippine Islands, Iloilo, and Cebu. According to a 
charter entered into between the petitioners and the above com- 
pany for the use of this ship in the transportation of goods she 
was loaded at Saigon in the fourth month of 1905 with a cargo 
consisting of cases of spirits and proceeded to Kamranh Bay, 
where she delivered her cargo. On her voyage from Kamranh 
Bay to Manila by way of Hongkong and Shanghai her engine was 
■damaged, so she steamed into the Pescadore Channel with the 
object of finding harbor or some other ship to get assistance 
for repairs. She was, however, captured by the Japanese man- 
of-war on the 16th of the fifth month in the above channel. This 
ship is a neutral ship, and both the petitioners and the charterers 
are neutral subjects. Besides 130 tons of coal loaded at Shanghai 
she took on board no contraband person or goods or letter, and 
the master and others did not know that the vicinity of the 
Pescadore Islands was the zone over which the " protected sea 
area " had been proclaimed. Hence, this ship should not have 
been captured. The written opinion of the public procurator 
shows that he regarded this ship as employed by the Russian 
Government and reconnoitering the defenses of Japan and the 
movements of the Japanese fleet on behalf of the enemy. * * * 
The main points of the opinion of the public procurator are : 
The charter party procured by the petitioners being a private 
document which might be prepared at any time can not be 
trusted. Consequently the petitioners are not parties entitled to 
bring this action; therefore this petition should be rejected. On 
the other hand, it may be inferred that this ship was chartered 
by the Russian Government and was engaged in reconnoitering 
the defenses of Japan and the movements of the Japanese fleet 
for the benefit of the enemy. Hence she is liable to confiscation. 

After reviewing and considering the evidence the court 
concludes as to the Quang-nam: 

That she purposely took a difficult passage between Formosa 
and the Pescadores under the pretext of going to Manila, and 
ran into Hatto Channel, was evidently for the purpose of recon- 
noitering the defenses near those islands, and the movements of 
the Japanese Squadron. Moreover, the fact that she took on 
board, at Saigon, Cardiff coal which she never .before consumed, 
that she sailed from Kamranh Bay to Shanghai by way of Hong- 
kong without any cargo, and that, at Shanghai no cargo was 
loaded, but 130 tons of Cardiff coal were taken on board when 

128 Strategic Area on High Seas. 

she had more than sufficient coal for her trip to Manila ; all these 
facts must be regarded as means taken in order to accomplish 
the service of reconnoitering. When a ship, though neutral, has 
er.gaged in reconnoitering defenses and the movements of a 
squadron for the benefit of the enemy, as this ship did, her con- 
fiscation is allowed by International Law. For the above reasons 
this ship should be confiscated. (Takahashi. International Law 
Russo-Japanese War, pp. 736-738.) 

The case was carried to the higher prize court, and 
the judgment was sustained on the same grounds. Taka- 
hashi regards this case as under the category of unneutral 
service. The court considers that the vessel ran into 
Hatto Channel " evidently for the purpose of recon- 
noitering the defenses near those islands, and the move- 
ments of the Japanese Squadron." The court said that 
reconnoitering of this character is just ground for con- 

As the area about the Pescadores Islands was a " stra- 
tegical area " or a " defense sea area " the presence of the 
ship within the area seemed to be a circumstance that 
weighed against its release and an evidence of unneutral 

Resume. — The practice, nature of regulations, and 
drift of opinion seem to show that in time of war a 
belligerent is entitled to take measures for his protection 
which are not unreasonable. Certainly he is entitled to 
regulate the use of his territorial waters in such fashion 
as shall be necessary for his well-being. Similarly a 
belligerent may be obliged to assume in time of war for 
his own protection a measure of control over the waters 
which in time of peace would be outside of his jurisdic- 
tion. It is universally admitted that if a neutral vessel 
is carrying contraband to his opponent, a belligerent 
may take the vessel to a prize court for adjudication. 
For such an act the course of the vessel may be changed, 
and it may be subjected to long delay. Would it be 
reasonable to contend that the course of a vessel may be 
changed to keep it out of a specified area because it 
might there obtain information which would be of vastly 

Solution. 129 

greater importance to the enemy than a cargo of contra- 
band, however noxious that might be. 


The commander should decline to escort the merchant 
vessel through the strategic area. 

He should advise the master of the merchant vessel to 
keep clear of the strategic area. 

60252—12 9 

Situation V. 


[It is granted in this situation that the Declaration of London is 

binding. ] 

War exists between States X and Y. Other States 
are neutral. 

A coal dealer, K, resident at P3, in neutral State Z, is 
known to be furnishing steaming coal of high quality. 

(a) To coal dealers at a port of Y. 

(b) To the Government of Y and to merchant colliers 

(c) To merchant colliers of Z which clear for a port 
of Y. 

{'d) To neutral merchant colliers which clear for a 
port of Y. 

1. Under (a) a cruiser of X meets a cruiser of Z on 
the high seas escorting a collier of K toward B. The 
cruiser of X requests the cruiser of Z to dismiss the 
collier from his convoy on the ground of carriage of 

What action should the cruiser of Z take ? 

2. Under (b) the Government of X requests Z to 
forbid naval and merchant colliers of Y to load coal of 
any quality in B on the ground that this makes B a base 
for Y. 

What action should the Government take? 

3. Under (<?) the Government of X requests Z to forbid 
K to furnish high quality steaming coal except to neutral 
ships for bunker coal only. 

What action should the Government take ? 

4. The Government of X requests Z to intern at B. a 
collier of Y loaded with steaming coal and about to clear 
for a second trip to a port of Y. 

A collier of Z about to do the same. 
A collier of M about to do the same. 
In the cases of the colliers of Z and M unneutral service 
is alleged. 

What action should be taken in each case? 

5. A cruiser of X meets a collier of Z and a collier of 
M returning in ballast from a third coal-carrying trip, 


General Notes. 131 

since the opening of hostilities, between port B and a port 
of Y. The cruiser captures both colliers as being engaged 
in unneutral service, Z and M request the release of the 
colliers and indemnity. 

What action should be taken ? 


(1) As the apparent destination of the cargo is a 
neutral port of Z, the commander of the cruiser of Z 
should not withdraw his protection unless he is reasonably 
certain that his confidence has been betrayed. 

(2) The Government of neutral State Z should heed 
the request of belligerent State X as regards the naval 
colliers and other colliers belonging to or in the service 
of State Y, though there might be circumstances when it 
would be justifiable to allow a collier to take coal neces- 
sary for its own use, but merchant colliers may be allowed 
to take coal. 

(3) The Government of neutral State Z is under no 
obligation to forbid the supply of cargo coal to neutral 

(4) If the collier of belligerent State Y has entered 
or is sojourning in the port of neutral State Z in contra- 
vention of the regulations of State Z, the collier may be 

The colliers flying the merchant flag of neutral State Z 
or neutral State M may be guilty of unneutral service, 
but this does not involve State Z in any obligation to 
intern the colliers. 

(5) The colliers should be released if their relations 
to the belligerent have been simply those of neutral mer- 
chant colliers. Their liability for carriage would be 
deposited with the cargo. 

If the colliers were chartered entire by or under the 
orders or control of the enemy government, or otherwise 
engaged in unneutral service, they would be liable to 


Duty of State as to contraband. — There are some who 
hold the opinion that a State is under obligation not only 
as a political unity to refrain from all sale of contra- 
band, but also to prevent those who are under its juris- 
diction from engaging in the sale of contraband. Those 

132 Taking Coal in Neutral Port. 

who support this contention often regard the manufac- 
ture and sale of contraband as analogous to the construc- 
tion of ships to the order of one of the belligerents. 
Others regard the trade in contraband simply as a busi- 
ness venture which may yield an exceptional profit if it 
succeeds, or involve an exceptional loss if it fails. Of 
this latter point of view Kleen, who advocates State 
supervision of trade in war material, says : 

II n'est guere besoin de fa ire observer cornbien cette derniere 
nianiere de voir est illogique et peu digne, disons meme revol- 
tante. Parler d'une " defense," mais feriner les yeux snr son 
infraction ; prohiber certain commerce, mais declarer qu'il depend 
du particulier de courir le risque; permettre a l'une des parties 
en cause d'attaquer une action qualifiee d'inoffensive en elle- 
meme, pour pouvoir justifier la negligence du gouvernement de la 
reprimer ; exposer enfin les neutres a des poursuites appartenant 
au droit de guerre, voila, a vrai dire, autant de maximes pour 
le moins etranges et une metbode de reglementation peu serieuse, 
qui sent singulierement le moyen a\ge. C'est le basard qui decide 
alors si une action peut passer librement ou non. Et encore, a 
supposer qu'elle soit attaquee, c'est de nouveau le basard qui 
decide de la repression et de la question de savoir a quel point 
sera severe l'application des moyens de la guerre. 

Et cependant, cette maniere noncbalante de regler une grande 
categorie des devoirs de la .neutralite, h savoir au moyen d'une 
extension du droit de la guerre anx depens de l'ordre et de la 
souverainete d'Etat, a predomine partout, tant dans la doctrine 
que dans la marine. Pour excuser l'anomalie, qui dans ce seul 
rapport de la neutralite separe le ressortissant neutre de son 
gouvernement pour le placer sous une souverainete etrangere, Ton 
a essaye de faire valoir pendant toute notre ere cette tbese 
absurde, que ce n'est pas le droit international mais le belligerant 
qui interdit les secours de guerre par contrabande, et qu'en con- 
sequence la seule repression qui soit necessire est celle qui con- 
siste dans les saisies et confiscation par le croiseurs en case de sur- 
prise. (Lois et usages de la neutralite, I, p. 380.) 

Opinion of Prof. Holland, 1904. — Prof. Holland, in 
1904, tried to condense the obligation of the neutral in 
regard to coaling and its relation to the use of territory 
as a base. This position showed the divergence from 
that of some of those who, like Kleen, would have the 
neutral State exercise supervision to prevent the export of 

Opinion of Prof. Holland. 133 

articles of contraband. Prof. Holland, in a letter to the 
Times, said : 

As a good deal of discussion is evidently about to take place as 
to the articles which may be properly treated as contraband of 
war, and, in particular, as to coal being properly so treated, I 
venture to think that it may be desirable to reduce this topic (a 
sufficiently large one) to its true dimensions by distinguishing it 
from other topics with which it is too liable to be confused. 

Articles are " contraband of war " which a belligerent is justi- 
fied in intercepting while in course of carriage to his enemy, 
although such carriage is being effected by a neutral vessel. 
Whether any given article should be treated as contraband is, in 
the first instance, entirely a question for the belligerent Govern- 
ment and its prize court. A neutral Government has no right to 
complain of hardships which may thus be incurred by vessels 
sailing under its flag, but is bound to acquiesce in the views main- 
tained by the belligerent Government and its courts, unless these 
views involve, in the language employed by Lord Granville in 
1861, " a flagrant violation of international law." This is the be- 
ginning and end of the doctrine of contraband. A neutral Govern- 
ment has none other than this passive duty of acquiescence. Its 
neutrality would not be compromised by the shipment from its 
shores, and the carriage by its merchantmen, of any quantity of 
cannon, rifles, and gunpowder. 

Widely different from the above are the following three topics, 
into the consideration of which discussions upon contraband oc- 
casionally diverge : 

1. The international duty of the neutral Government not to 
allow its territory to become a base of belligerent operations, e. g., 
by the organization on its shores of an expedition, such as that 
which in 1828 sailed from Plymouth in the interest of Dona 
Maria ; by the dispatch from its harbors for belligerent use of 
anything so closely resembling an expedition as a fully equipped 
ship of war (as was argued in the case of the Alabama) ; by the 
use of its ports by belligerent ships of war for the reception of 
munitions of war, or, except under strict limitations, for the re- 
newal of their stock of coal; or by such an employment of its 
colliers as was alleged during the Franco-Prussian War to have 
implicated British merchantmen in the hostile operations of the 
French fleet in the North Sea. The use of the term " contraband " 
with reference to the failure of a neutral State to prevent occur- 
rences of this kind is purely misleading. 

2. The powers conferred upon a Government by legislation of 
restraining its subjects from intermeddling in a war in which the 
Government takes no part. Of such legislation our foreign enlist- 
ment act is a striking example. The large powers conferred by it 
have no commensurable relation to the duties which attach to the 

134 Taking Goal in Neutral Port. 

position of neutrality. Its effect is to enable the Government to 
prohibit and punish, from abundant caution, many acts on the 
part of its subjects for which it would incur no international lia- 
bility. It does empower the Government to prevent the use of its 
territory as a base, e. g., by aid directly rendered thence to a 
belligerent fleet; but it, of course, gives no right of interference 
with the export or carriage of articles which may be treated as 
contraband. (Letters on War and Neutrality, p. 90. The third 
topic relates to domestic regulation and is not printed here.) 

Kleen also cites the prohibitions against trade, in con- 
traband which have been made by domestic regulations 
of various States. He further says that States should see 
that these regulations are enforced : 

Le devoir d'abstention de l'Etat neutre est done ici double : il 
doit s'abstenir lui-meme, et il doit faire s'abstenir ses ressortis- 
sants. En consequence, il est tenu : 1° de se retenir de tonte 
mesure ou demarche par laquelle des articles de guerre seraient: 
fournis a un belligerant ; 2° d'inserer dans sa legislation une 
defense formelle, conform e a celle du droit international, contre 
tout trafic de contrebande de guerre par ses sujets et sous sa juri- 
diction ; 3° de surveiller par ses organes et autorites, et en usant de 
toute due diligence, l'observation de la defense, et d'en reprimer les 
transgressions. (Lois et usages de la neutrality, I, p. 382.) 

Belgian domestic regulation, 1901. — As an example of 
the regulations which may be established by States in 
time of peace and in contemplation of war may be cited 
the Belgian regulations of February 18, 1901. 



Art. 8. Les batiments appartenant a la marine militaire d'un 
Etat engage dans une guerre maritime ne sont admis dans les 
eaux territoriales et les ports beiges de la mer du Nord que pour 
une duree de vingt-quatre heures. Le meme navire ne pent etre 
admis deux fois dans l'espace de trois mois. 

Art. 9. L'acces des eaux beiges de l'Escaut est interdit, a moins 
dautorisation speciale du gouvemement, aux batiments de guerre 
appartenant a un Etat engage dans une guerre maritime. Aucun 
pilote ne peut §tre fourni a ces batiments s'ils ne sont pas pour- 
vus de la dite autorisation. Si 1'autorisation n'a pas 6te obtenue 
par la voie diplomatique, elle doit etre demandee par l'entremise 
du sous-inspecteur du pilotage beige a Flessingue. qui transinettra 
la decision au commandant du navire. 

Belgian Regulations. 135 

Art. 10. Sauf en cas de danger de mer, d'avaries graves, de 
manque de vivres ou de combustible, Faeces des eaux territo- 
riales et ports beiges de la mer du Nord est interdit aux batiments 
de guerre convoyant des prises et aux batiments amies eu course 
naviguant avec ou sans prises. 

Art„ 11. Si des batiments de guerre ou des navires armes en 
course appartenant a une nation engagee dans une guerre mari- 
time sont contraints de se refugier dans les eaux ou ports 
beiges de la mer du Nord, par suite de danger de mer, d'avaries 
graves, de manque de vivres ou de combustible, ils reprendront le 
large aussitot que le temps le permettra ou bien dans les vingt- 
quatre beures qui suivront soit l'acbevement des reparations 
autorisees, soit l'embarquement des provisions dont la necessity 
aura ete demontree. 

Art. 12. Le commandant de tout bailment de guerre d'une 
puissance belligerante aussitot apres son entree dans les eaux 
ou ports beiges de la mer du Nord sera, a l'intervention de l'ad- 
ministration de la marine, invite a, fournir des indications pre- 
cises, concernant le pavilion, le nom, le tonnage, la force des 
machines, l'equipage du batiment, son armement, le port de 
depart, la destination, ainsi que les autres renseignements neces- 
saires pour determiner, le cas echeant, les reparations ou les 
approvisionnements en vivres et charbon qui pourraient §tre 

Art. 13. En aucun cas, il ne peut etre fourni aux batiments de 
guerre ou aux navires arrows en course d'une nation engagee dans 
une guerre maritime des approvisionnements ou moyens de repa- 
rations au dela de la mesure indispensable pour qu'ils puissent 
atteindre le port le plus rapproche de leur pays ou d'un pays 
allie au leur pendant la guerre. Un rnenie navire ne pourra etre, 
sans autorisation sp§ciale, pourvu de charbon une seconde fois 
que trois mois au moins apr£s un premier chargement dans un 
port beige. 

Art. 14. Les batiments specifies a Farticle precedent ne peuvent, 
a l'aide de fournitures prises sur le territoire beige, augmenter, 
de quelque maniere que ce soit, leur materiel de guerre, ni ren- 
forcer leur equipage, ni faire des enrolements, meme parini leurs 
uationaux, ni executer, sous pretexte de reparation, des travaux 
susceptibles d'accroitre leur puissance militaire, ni debarquer 
pour les rapatrier par les voies de terre, des homines, uiarins ou 
soldats se trouvant k bord. 

Art. 15. Ils doivent s'abstenir de tout acte ayant pour but de 
faire du lieu d'asile la base d'une operation quelconque contre 
leurs ennemis, comme aussi de toute investigation sur les res- 
sources, les forces et remplacement de leurs ennemis. 

Art. 16. Ils sont tenus de se conformer aux prescriptions des 
articles 6 et 7 du present arrete et d'entretenir des relations paci- 

136 Taking Goal in Neutral Port. 

fiques avec tous les navires, amis ou ennemis, inouilles dans le 
meme port ou dans la meme zone territoriale beige. 

Art. 17. L'echange, la vente ou la cession gratuite de prises ou 
de butin de guerre sont interdits dans les eaux et ports beiges. 

Art. 18. Tout acte d'hostilite est interdit aux batiments de 
guerre etrangers dans les eaux beiges. 

Art. 19. Si des batiments de guerre ou de commerce de deux 
nations en §tat de guerre se trouvent en menie temps dans un 
port ou dans les eaux beiges, il y aura un inter valle de vingt- 
quatre heures au moins fixe par les autorites competentes entre 
le depart d'un navire de l'un des belligerants et le depart subse- 
quent d'un navire de l'autre belligerant. Dans ce cas, il pourra 
dtre fait exception aux prescriptions de l'article 8. La priority 
de la demande assure la priorite de la sortie. Toutefois le plus 
faible des deux batiments pourra etre autorise a sortir le premier. 

Art. 20. Le gouvernement se reserve la faculte de modifier 
les dispositions des articles 8 et suivants du present arrets, en 
vue de prendre dans les cas speciaux et si des circonstances excep- 
tionnelles se presentent, toutes les mesures que la stricte observa- 
tion de la neutrality rendrait opportunes ou necessaires. 

Art. 21. Dans le cas d'une violation des dispositions du present 
arrete, les autorites locales designees par le gouvernement prend- 
ront toutes les mesures que les instructions speciales leur pre- 
scrivent et elles avertiront sans delai le gouvernement qui intro- 
duira aupr§s des puissances §trangeres les protestations et recla- 
mations necessaires. 


Art. 22. Aussitot que la mobilisation de l'armee est decretee, 
il est interdit a tous batinients de guerre etrangers, de mouiller 
dans les eaux et ports beiges de la mer du Nord, sans autorisation 
prealable du gouvernement, sauf les cas de danger de mer, de 
manque d'approvisionnements ou d' avaries graves, Aucun pilote 
ne pourra, nors les cas de force majeure prevus ci-dessus, etre 
fourni aux dits navires s'ils n'ont pas obtenu l'autorisation preal- 
able requise. En ce qui concerne les eaux beiges de l'Escaut, 
lorsque l'autorisation d'y penetrer aura ete accordee dans ces 
circonstances, le sous-inspecteur du pilotage beige a Flessingue 
previendra le commandant du navire qu'il doit s'arreter en vue 
du fort Frederic pour communiquer cette autorisation au delegue 
du gouverneur militaire de la position d'Anvers, qui sera muni des 
instructions necessaires. Le pavilion beige est hisse sur l'ancien 
fort Frederic en un point visible pour les navires qui approchent. 


Art. 23. Un exemplaire du present arrete sera remis par les 
autorites maritimes au commandant de tout batiment de guerre 

Consideration of Coaling. 137 

ou navire arine en course aussitot apres qu'il aura ete autorise a. 
mouiller dans les eaux beiges. 

Aet. 24. Nos ministres des affaires etrangeres, de la guerre et 
des chemins de fer, postes et telegraphes sont charges, chacun 
•dans la liinite de ses attributious de l'execution du' present arrete. 
(Revue Generale de Droit International Public, Vol. VIII, p. 343.) 

Consideration of coaling. — The question of coaling 
within neutral jurisdiction and questions related to this 
have received attention at the conferences on international 
law at the Kaval War College. Topic IV of 1906, 
Situation IV of 1908, and Situation I of 1910 particu- 
larly consider this question. The later discussions show 
that the principles set forth in The Hague Conventions 
allow to States preferring the liberal standard permission 
to grant a full bunker supply of coal within their ports. 

Coaling under Situation V. — Situation V presents the 
matter of coaling under somewhat different conditions. 
Coal is under the Declaration of London of 1909, regarded 
as conditional contraband by article 24 (9), which men- 
tions " fuel and lubricants " as among the " articles 
and materials susceptible of use in war as well as for 
purposes of peace," which " are without notice regarded 
as contraband of war, under the name of conditional 

It has been suggested that coal be added to the list of 
absolute contraband. This action would involve article 
23 of the Declaration of London. 

Article 23, Declaration of London. — Article 23 of the 
Declaration of London and its interpretation as set forth 
in the general report is as follows : 

Aeticle 23. Articles and materials exclusively used for war 
may be added to the list of absolute contraband by means of a, 
notified declaration. 

The notification is addressed to the Governments of other 
Powers, or to their representatives accredited to the power mak- 
ing the declaration. A notification made after the opening of hos- 
tilities is addressed only to the neutral powers. 

Certain discoveries or inventions might make the list in Article 
22 insufficient. An addition may be made to it on condition that it 
concerns articles and materials which are exclusively used for 
toar. This addition must be notified to the other powers, which 

138 Taking Goal in Neutral Port. 

will take the measures necessary to make it known to their 
nationals. In theory, the notification may be made in time of 
peace or in time of war. Doubtless the former case will rarely 
occur, because a State which made such a notification might be 
suspected of meditating a war ; it would, nevertheless, have the 
advantage of informing trade beforehand. There was no reason 
for excluding the possibility. 

Some have considered excessive the right given to a power to 
make an addition to the list by a mere declaration. It should be 
noticed that this right does not present the dangers supposed. In 
the first place, it being understood, the declaration is operative 
only for the power which makes it, in the sense that the article 
added will be contraband only for it, as a belligerent; other 
States may, of course, make a similar declaration. The addition 
may refer only to articles exclusively used for war; at present it 
would be difficult to name any such articles not included in the 
list. The future is left free. If a power make claim to add to 
the list of absolute contraband articles not exclusively used for 
war, it would draw upon itself diplomatic remonstrances, because 
ic would be disregarding an accepted rule. Besides, there would 
be an eventual resort to the International Prize Court. It may 
be supposed that the court holds that the article mentioned in the 
declaration of absolute contraband wrongly appears there because 
it is not exclusively used for war, but that it might have been 
included in a declaration of conditional contraband. Condemna- 
tion would then be justified if the capture was made under the 
conditions provided for this kind of contraband (arts. 33-35) 
which differ from those which apply to absolute contraband 
(art. 30). 

It had been suggested that, in the interest of neutral trade, a 
period should elapse between the notification and its application. 
But that would be very prejudicial to the belligerent, who wishes 
precisely to protect himself, since during that period the trade in 
articles considered by him dangerous would be free and his 
measure would have failed of effect. Account has been taken, in 
another form, of the considerations of equity which have been 
adduced. (See art. 43.) (N. W. C. International Law Topics, 
1909, pp. 61-63.) 

Memoranda on provisions of article 23. — The provi- 
sions of article 23 of the Declaration of London were 
embodied in different forms in the memoranda submitted 
to the international naval conference. Examples of these 
show that the list of absolute contraband was not con- 
sidered as finally complete : 

Declaration of London. 139 


Les belligerants ont la faculte de completer la liste de la con- 
trebande absolue par une declaration speciale et notifiee. lis ne 
pourront toutefois ajouter a, la liste deja existante que des objets 
et niateriaux exclusivenient faits pour servir a la guerre. (Brit- 
ish Parliamentary Papers, International Naval Conference, Mis- 
cellaneous, No. 5 (1909), Cd., 4555, p. 59.) 


An cas de guerre, les articles qui, conditionnellement ou sans 
condition, constituent de la contrebande de guerre doivent etre 
dument annonces par des moyens de publicite, lorsque ces objets 
n'ont pas ete specifiquement mentionnes dans des traites ante- 
rieurement conclus, et encore en vigueur. (Ibid, p. 60.) 

The subject is considered in a general manner in the 
Austro-Hungarian memorandum : 


(a) Selon la doctrine et la pratique, seul le materiel de guerre 
subit, comme contrebande, la confiscation pure et simple. Quel- 
ques Puissances, il est vrai, ont egalemeut range parmi la contre- 
bande dite absolue des objets de double usage. De tels objets ne 
sont toutefois pas consideres, gerieralement, comme contrebande 
au sens strict, leurs proprietaires etant indemnises, d'ordinaire, 
par le capteur. Nombre d'auteurs remarquables restreignent 
meme la notion de la contrebande aux objets qui, par leur nature, 
peuvent elre consideres comme devant aider le belligerant dans 
les hostilites, c'est-a-dire aux armes et munitions de guerre, le 
commerce de tout autre article restant entierement libre. (voir 
Kleen, De la contrebande de guerre, 1893, p. 288 et suiv. ; Lois et 
usages de la Neutrality, t. 1, p. 397 ; de Boeck, Propriete priv§e 
ennemie sous pavilion ennemi, p. 590 ; Despagnet, Cour de droit 
international public, p. 831 ; Institut de droit international, avant- 
projet, 1896, § 3). 

Or, de nos jours les belligerants ont recours, dans une mesure 
croissante, a toutes les branches de la production agricole et 
industrielle sous les formes les plus variees ; pour 6quiper et 
approvisionner leurs armees gigantesques, les Puissances se 
trouvent forcees de se pourvoir d'une foule de choses d'un usage 
normalement pacifique (vivres, 6toffes, matieres premieres, chev- 
aux, houille). S'il parait logique, a premiere vue, de declarer 
contrebande de tels articles aussi bien que le materiel de guerre, 
il serait tout de meme dangereux d'etendre, par un accord inter- 

140 Taking Goal in Neutral Port. 

national, la notion de la contrebande au-dela du materiel de 
guerre propreinent dit. 

A pareille extension, on pourrait opposer, a plus forte raison, 
toutes les objections soulevees par le Delegue de la Grande- 
Bretagne, au cours de la 2 e Conference de la Paix, contre le 
principe rneme de la contrebande (IV e Commission, 8" seance). 

Dans le cas ou les Puissances ne tomberaient pas d'accord pour 
abolir definitivement le principe meme de la contrebrande, il 
serait du moins fort desirable d'abandonner la contrebande dite 

De plus, des considerations serieuses militent contre la notion 
de la contrabande absolue. D'apres la doctrine generalement 
adoptee, la contrebande est caracterisee par le fait que le neutre, 
en transportant des objets propres a etre employes dans la 
guerre, procure au destinataire un avantage sur son ennemi. A 
cet effect, les objets doivent tomber reellement entre ses mains. 
Le fait seul qu'ils sont diriges vers l'adversaire ne suffit point 
pour leur imprimer le charactere hostile. Si la guerre n'a lieu 
que sur terre, le belligerant ne devrait done pas confisquer de 
blindages ou de machines de marine; et si les objets transported 
sont destines a traverser seulement le territoire ennemi, l'en- 
trave mise au transport ne serait guere justifiable. Peut-etre dira- 
t-on que l'adversaire aurait a craindre, en ce cas, que l'ennemi 
ne s'en emparat pendant leur transit. Or, un sauf-conduit, 
delivre 1 par les autorites du pays ennemi et produit par le neutre 
arrete, ecarterait, cette crainte. 

II s'ensuit que, en verite, il n'existe qu'une contrebande pre- 
sumable (et non pas absolu), le transport de materiel de guerre 
creant uniquement la presomption que les articles en route vers 
l'ennemi seraient employes dans la guerre. On ne saurait done 
refuser aux neutres le preuve du contraire. 

Quant a la determination precise de la contrebande, il faut se 
demander si elle doit consister en une enumeration limitative des 
objets de contrebande ou bien en une definition. Une definition 
semble etre preferable. Presque tous les auteurs, notamment les 
ecrivains anglais, rejettent, par de bonnes raisons, la " liste," 
puisqu'une enumeration serait incomplete ou, du moins, le devien- 
drait bientot. (Voir Perels, Das internationale offentliche 
Seerecht, S. 238.) 

Au cas ou une definition de la contrebande serait adoptee, les 
Puissances auraient a s'abstenir de notifier, dans leurs proclama- 
tions de guerre, une liste des articles a coufisquer. La Cour inter- 
nationale des prises manquerait de toute base de juridiction, si 
1'on autorisait dorenavant les belligerants a determiner arbi- 
trairement les objets de contrebande. (Tbid, p. 00.) 

Spain advocated the list proposed at the Second Hague 
Conference, 1907. 

Declaration of London. 141 

France suggested a definite list and adds : 

Ainsi que tous instruments, matieres on objets quelconques sus- 
ceptibles d'etre utilises pour l'arinement des navires on pour 
l'usage de la guerre. (Ibid., p. 61.) 

Great Britain supported the list proposed at the Sec- 
ond Hague Conference, 190T. 

Italy proposed to issue a special notification at the 
opening of hostilities if the list is not already agreed 
upon by treaty. Some States made no specific reference 
to the matter of adding to the list. 

Russia, after enumerating the articles proposed at the 
Second Hague Conference, added : 

II est egalernent interdit de transporter a l'ennemi tous les 
autres objets en general servant exclusivement pour l'usage de la 
guerre que le belligerent aura expressement declares comme con- 
trebande de guerre absolue. (Ibid., p. 63.) 

The committee which correlated these memoranda ob- 
served : 

Le principe general etant qu'en pareille matiere la raison 
d'etre du caractere absolu de la contrebaude est la nature bostile 
manifeste des objets, on pent se demander s'il existe actuelle- 
nient des motifs s'opposant a ce que, au moyen d'une declaration 
notifiee, les iStats, par une declaration devant eviter les surprises, 
puissent a j outer a la liste de contrebande absolue d'autres arti- 
cles exclusivement faits pour la guerre. (Ibid., p. 63.) 

And proposed as a base of discussion : 

Les articles qui sont exclusivement employes a la guerre peu- 
vent gtre ajout§s a la liste de contrebande absolue au moyen d'une 
declaration notifiee. (Ibid., p. 64.) 

Discussion at. the naval conference. — The discussion 
at the naval conference of 1908-9 of the proposition to 
allow a power to add to the list of contraband shows 
how it was regarded. The Austro-Hungarian delegate 
asked if the belligerent had the right to publish an in- 
definite number of supplementary lists of absolute con- 

M. Croioe repond que rien ne s'oppose a ce qu'on fasse plus 
d'une liste. Toute addition & la liste premiere devra cependant 
se bonier k des objets d'un usage exclusif a la guerre. Or, la 
liste telle qu'elle se trouve redigee est si complete que Ton serait 

142 Taking Goal in Neutral Port. 

fort embarrasse d'avoir a indiquer & ce moment un article quel- 
conque qui ptit £tre ajoute dans les conditions posees. La faculte 
d'ajouter, bien loin d'etre illimitee, est en effet tres rigoureuse- 
ment restreinte, quelque large qu'elle puisse paraitre dans la 
theorie. (British Parliamentary Papers, International Naval 
Conference, Miscellaneous, No. 5 (1909), p. 135.) 

Other discussion showed that it would be difficult to 
add to the list any article which would be solely of use 
for war, and additions to the list were to be restricted to 
articles of that character. 

Situation V, 1. — Under the first hypothesis a cruiser 
of X, a belligerent State, meets a cruiser of Z, a neutral 
State, on the high seas escorting a collier with a cargo 
consigned to K, a merchant, resident at B, a port of neu- 
tral State Z. This merchant is furnishing steaming coal 
of a high quality to a port of State Y. As coal could not 
be regarded as absolute contraband, the cargo would be 
liable to seizure only in case it was shown to be really 
destined for the forces of State Y. The supposition 
under (a) that the coal may be taken to a port of Y is 
not sufficient to justify interference with the convoying 
vessel if the collier is in reality bound for a neutral des- 
tination. In this matter, under the Declaration of Lon- 
don, which for the purpose of this situation is admitted 
to be binding, the visiting cruiser must take the word of 
the commander of the public vessel of Z, which is act- 
ing as escort for the collier. That differences might 
arise in the opinions of the escorting and visiting officers 
was recognized as almost inevitable, and the general re- 
port of the declaration says : 

Differences may arise between the two officers, particularly in 
regard to conditional contraband. The character of a port to 
which grain is destined may be disputed. Is it an ordinary com- 
mercial port? Is it a port which serves as a base of supply for 
the armed forces? The situation in fact created by the convoy 
must in such a case prevail. There can be on the part of the offi- 
cer of the cruiser only a protest, and the difficulty will be settled 
through the diplomatic channel. 

The situation is altogether different if a convoyed vessel is 
found beyond the possibility of dispute to be carrying contraband. 
The vessel has no longer a right to protection, since the condi- 
tion upon which such protection depends has not been fulfilled. • 

Treaty of Washington. 143 

She has deceived lier own Government and has tried to deceive the 
belligerent. She must therefore be treated as a neutral mer- 
chant vessel, which in the ordinary way encounters and is visited 
and searched by a belligerent cruiser. She can not complain at 
being thus treated rigorously, since there is in her case an aggra- 
vation of the offense committed by a carrier of contraband. (In- 
ternational Law Topics, 1909, p. 143.) 

It is possible that the collier may have betrayed the con- 
fidence of the commander of the escorting cruiser. The 
collier may have false papers, may be guilty of unneutral 
service, or may for other reasons not be entitled to pro- 
tection. The ground of carriage of contraband would 
not be a sufficient reason for withdrawal of protection if 
the collier is actually destined for B, a port of neutral 
State Z. 

Solution V (1). — As the apparent destination of the 
cargo is a neutral port of Z, the commander of the 
cruiser of Z should not withdraw his protection unless 
he is reasonably certain that his confidence has been 

Treaty of Washington. — By the rules agreed upon 
between the United States and Great Britain in the treaty 
of Washington of 1871 relative to claims arising during 
the American Civil War the obligations of a neutral State 
are set forth under Article VI as follows : 

A neutral Government is bound — 

First. To use due diligence to prevent the fitting out, arming, 
or equipping, within its jurisdiction, of any vessel which it has 
reasonable ground to believe is intended to cruise or to carry on 
war against a power with which it is at peace; and also to use 
like diligence to prevent the departure from its jurisdiction of any 
vessel intended to cruise or carry on war as above, such vessel 
having been specially adapted, in whole or in part, within such 
jurisdiction, to warlike use. 

Second. Not to permit or suffer either belligerent to make use 
of its ports or waters as the base of naval operations against the 
other, or for the purpose of the renewal or augmentation of mili- 
tary supplies or arms, or the recruitment of men. 

Third. To exercise due diligence in its own ports and waters, 
and, as to all persons within its jurisdiction, to prevent any viola- 
tion of the foregoing obligations and duties. 

Her Britannic Majesty has commanded her high commissioners 
and plenipotentiaries to declare that Her Majesty's Government 

144 Taking Coal in Neutral Port. 

can not assent to the foregoing rules as a statement of the 
principles of international law which were in force at the time 
when the claims mentioned in Article I arose, but that Her 
Majesty's Government, in order to evince its desire of strengthen- 
ing the friendly relations between the two countries and of 
making satisfactory provision for the future, agrees that in de- 
ciding the questions between the two countries arising out of those 
claims, the arbitrators should assume that Her Majesty's Gov- 
ernment has undertaken to act upon the principles set forth in 
these rules. 

And the high contracting parties agree to observe these rules 
as between themselves in future, and to bring them to the knowl- 
edge of other maritime powers, and to invite them to accede to 

Prof. Moore says: 

As to the second rule, the Case of the United States said 
that it was not understood " to apply to the sale of military 
supplies or arms in the ordinary course of commerce," but " to 
the use of a neutral port by a belligerent for the renewal or aug- 
mentation of such military supplies or arms for the naval op- 
erations referred to in the rule." " The ports or waters of the 
neutral are not," continued the Case, " to be made the base of 
naval operations by a belligerent. Vessels of war may come and 
go under such rules and regulations as the neutral may prescribe; 
food and the ordinary stores and supplies of a ship not of a war- 
like charcter may be furnished without question, in quantities 
necessary for immediate wants; the moderate hospitalities which 
do not infringe upon impartiality may be extended, but no act 
sball be done to make the neutral port a base of operations. 
Ammunition and military stores for cruisers can not be obtained 
there; coal can not be stored there for successive supplies to the 
same vessel, nor can it be furnished or obtained in such sup- 
plies; prizes can not be brought there for condemnation. The 
repairs that humanity demands can be given, but no repairs should 
add to the strength or efficiency of a vessel beyond what is abso- 
lutely necessary to gain the nearest of its own ports. In the same 
sense are to be taken the clauses relating to the renewal or 
augmentation of military supplies or arms and the recruitment 
of men. As the vessel enters the port, so is she to leave it, without 
addition to her effective power of doing injury to the other bellig- 
erent. If her magazine is supplied with powder, shot, or shells; 
if new guns are added to her armament ; if pistols, or muskets, or 
cutlasses, or other implements of destruction are put on board; if 
men are recruited ; even if, in these days when steam is a power, 
an excessive supply of coal is put into her bunkers the neutral 
will have failed in the performance of its duty." (Moore, Inter- 
national Arbitrations, v. 1, p. 574.) 

Treaty of Washington. 145 

In discussion of the subject the British Case announces : 

1. A neutral government is bound to exercise due diligence to 
the intent that no place within its territory be made use of by 
either belligerent as a base or point of departure for a military 
or naval expedition, or for hostilities by land or sea. 

2. A neutral government is not, by force of the above-mentioned 
obligation or otherwise, bound to prevent or restrain the sale 
within its territory, to a belligerent, of articles contraband of war, 
or the manufacture within its territory of such articles to the 
order of a belligerent, or the delivery thereof within its' territory 
to a belligerent purchaser, or the exportation of such articles from 
its territory for sale to, or for the use of, a belligerent, 

3. Nor is a neutral government bound, by force of the above- 
mentioned obligation or otherwise, to prohibit or prevent vessels 
of war in the service of a belligerent from entering or remaining 
in its ports or waters, or from purchasing provisions, coal, or 
other supplies, or undergoing repairs therein ; provided that the 
same facilities be accorded to both belligerents indifferently ; 
and provided also that such vessels be not permitted to augment 
their military force, or increase or renew their supplies of arms 
or munitions of war, or of men, within the neutral territory. 
(Ibid, p. 599.) 

The award made by the Geneva tribunal states — 

In order to impart to any supplies of coal a character incon- 
sistent with the second rule, prohibiting the use of neutral ports 
or waters, as a base of naval operations for a belligerent, it is 
necessary that the said supplies should be connected with special 
circumstances of time, of persons, or of place, which may combine 
to give them such character. (Ibid, p. 655.) 

Opinion of the Institute of International Law, 1875. — 
The Institute of International Law considered the rules 
of the treaty of Washington in 1875 and adopted the 
following among its propositions : 

IV. De meme l'Etat neutre ne doit ni permettre ni souffrir que 
Fun des belligerants fasse de ses ports ou de ses eaux, la base 
d'operations navales contre l'autre, ou que les vaisseaux de trans- 
port militaire se servent de ses ports ou de ses eaux, pour re- 
nouveler ou augmenter leurs approvisionnements militaires ou 
leurs armes ou pour recruter des hommes. (1 Annuaire, 1875, 
p. 139.) 

Brazilian proclamation. 1898. — The proclamation is- 
sued by Brazil during the Spanish-American War of 1898 
60252—12 10 

146 Taking Coal in Neutral Port. 

provides more than usual in detail for the conduct of 
belligerent vessels in Brazilian ports. 

VIII. No ship with the flag of one of the belligerents employed 
in the war, or destined for the same, may be provisioned, equipped, 
or armed in the ports of the Republic, the furnishing of victuals 
and naval stores which it may absolutely need and the things 
indispensable for the continuation of its voyage not being in- 
cluded in this prohibition. 

IX. The last provision of the preceding section presupposes 
that the ship is bound for a certain port, and that it is only en 
route and puts into a port of the Republic through stress of cir- 
cumstances. This, moreover, will not be considered as verified 
if the same ship tries the same port repeated times, or after 
having been relieved in one port should subsequently enter an- 
other; under the same pretext, except in proven cases of com- 
pelling circumstances. Therefore, repeated visits without a suf- 
ficiently justified motive would authorize the suspicion that the 
ship is not really en route, but is frequenting the seas near 
Brazil in order to make prizes of hostile ships. In such cases 
asylum or succor given to a ship would be characterized as assist- 
ance or favor given against the other belligerent, being thus a 
breach of neutrality. 

Therefore, a ship which shall once have entered one of our 
ports shall not. be received in that or another shortly after hav- 
ing left the first, in order to take victuals, naval stores, or make 
repairs, except in a duly proved case of compelling circumstances, 
unless after a reasonable interval which would make it seem 
probable that the ship had left the coast of Brazil and had re- 
turned after having finished the voyage she was undertaking. 

X. The movements of the belligerent will be under the super- 
vision of the customs authorities from the time of entrance 
until that of departure for the purpose of verifying the proper 
character of the things put on board. 

XI. The ships of belligerents shall take material for combus- 
tion only for the continuance of their voyage. 

Furnishing coal to ships which sail the seas near Brazil for 
the purpose of making prizes of an enemy's vessels or prosecuting 
any other kind of hostile operations is prohibited. 

A ship which shall have once received material for combustion 
in our ports shall not be allowed a new supply there unless there 
shall have elapsed a reasonable interval which makes it probable 
that said ship has returned after having finished its voyage to 
a foreign port. 

XII. It will not be permitted to either of the belligerents to 
receive in the ports of the Republic goods coming directly for 
them in the ships of any nation whatever. 

Question at Hague, 1907 . 147 

This means that the belligerents may not seek ports en route 
and on account of an unforeseen necessity, while having the in- 
tention of remaining in the vicinity of the coasts of Brazil, taking 
thus beforehand the necessary precautions to furnish themselves 
with the means of continuing their enterprises. The tolerance of 
such an abuse would be equivalent to allowing our ports to serve 
as a base of operations for the belligerents. (U. S. Foreign Rela- 
tions, 1898, p. 847.) 

These same rules were regarded by Brazil as operative 
in 1904. (U. S. Foreign Kelations, 1904, p. 16.) 

Question at The Hague, 1907. — The matter of the use 
of territory as a base received considerable attention at 
the Second Hague Conference in 1907. 

In the questionnaire proposed in annex 49 by the sub- 
committee it is asked : 

III. Dans quelle mesure doit-il etre aux navires de 
guerre des belligerants d'utiliser les ports neutres et les eaux 

Lieu d'observation. 



Base d'operations de guerre. 

Constitution d'un tribunal de prises. 

Buts militaires de toute nature. (Denxieme Conference de la 
Paix, Tome 111, p. 705.) 

The replies to this question, particularly as relate to the 
use of the territory of a neutral as a base, show some dif- 
ference as to the degree of stringency of proposed rules 
and ideas as to what constitute a base. 


Aeticle 1. II ne sera pas permis aux vaisseaux de guerre 
d'entrer ou de sojourner dans les ports on les eaux neutres, en 
les prenant comme bases d'operations de guerre, quelle que soit 
la nature de ces operations. 


(9) Un Etat neutre devra empecher, dans la mesure du pos- 
sible, qu'une partie de son territoire on de ses eaux territoriales 
ne serve de base d'operations a une flotte belligerante. 

148 Taking Coal hi Neutral Port. 

(10) Un territoire neutre on des eaux territorial es neutres 
seront considered comme servant de base d'operations a un bel- 
ligerant lorsque, entre antres : 

(a) II a ete installe sur le territoire neutre ou a bord d'un 
navire dans les eaux neutres une station radio-telegraphique on 
tout autre appareil destine a matntenir la communication avec 
les navires de guerre du belligerant. 

(6) Les navires belligerants se feront ravitailler dans les eaux 
neutres par des vaisseaux auxiliaires de leur flotte. 


(1) II est interdit aux navires belligerants de se servir des 
ports et des eaux neutres soit comrne lieu d'observations ou de 
rendez-vous, soit comme bases d'operations de guerre ou de buts 
militaires de toute nature. 


(3) Est ega lenient interdit aux dits batiments de se servir des 
ports et des eaux territoriales neutres comme de bases d'opera- 
tions de guerre. (Ibid., pp. 705, 706.) 

Another question was also proposed which related to 
the subject of the amount of coal which could be taken. 

XII. Dans quelle mesure pourront-ils s'y approvisionner de 
vivres et de charbon? 

To this question several States replied. 


Art. 5. Les vaisseaux belligerancs ne pourront, pendant leur 
sejour dans les ports ou les eaux neutres, charger du materiel 
de guerre, ni aucun approvisionnement de nature a augmenter 
leur force militaire. lis - pourront toutefois, se pourvoir des 
vivres et du charbon necessaires pour atteindre le port le plus 
rapproche de leur pays ou un port neutre plus proche encore. 


(17) Une puissance neutre ne devra pas permettre sciemment 
d, un navire de guerre d'un belligerant se trouvant dans sa juri- 
diction de prendre a bord des munitions, vivres ou combustibles 
si ce n'est dans le cas ou les munitions, vivres ou combustibles 
deja a bord du navire ne lui sufflraient pas pour gagner le port 
le plus proche de son propre pays ; la quantite de munitions, 

Question at Hague, 1907. 149 

vivres ou combustibles chargees a bord du navire dans la juri- 
diction neutre ne devra en aucun cas depasser le complement 
necessaire por lui permettre de gagner le port le plus proche de 
son propre pays. 


(4) Les na vires belligerants ne pourront dans les ports ou les 
eaux neutres, ni augmenter leurs forces de guerre, ni faire de 
reparations sauf celles qui seront indispensables a la securite de 
leur navigation, ni charger aucun approvisionnement excepte du 
charbon et des provisions suffisant, avec ce qui reste encore a 
bord, pour les mettre a nieme d'atteindre a une vitesse economique 
le port le plus rapproche de leur pays ou une destination neutre 
plus proche encore. 


(7) II est interdit aux batiments de guerre des Etats belli g§- 
rants, pendant leur sejour dans les ports et les eaux territoriales 
neutres, d'augmenter a l'aide de ressources puisees il terre, leur 
materiel de guerre ou de renforcer leur equipage. 

Toutefois les batiments susmentionnes pourront se pourvoir de 
vivres, denrees, approvisionnements, charbon et moyens de repa- 
ration necessaires a la subsistance de leur equipage ou a la con- 
tinuation de leur navigation. (Deuxieme Conference de la Paix, 
Tome III, p. 710.) 

Discussion at The Hague, 1907. — The plenipotentiary 
from the Netherlands said of the replies to question III, 
relating to the use of neutral ports and waters : 

Comme j'avais l'honneur de faire ressortir dans la seance 
precedente de cette Sous-Commission les regies conventionelles k 
edicter par rapport au regime des navires de guerre belligerants 
dans les ports neutres doivent en premier lieu etre bien precises 
afin qu'elles ne donnent pas lieu a des malentendus facheux. 

C'est dans cet ordre d'idees que je me permets d'appeler votre 
attention sur l'article 1 de la proposition espagnole et snr 1'article 
1 de la proposition japonaise ou il est parle de " base d'opera- 
tions de guerre quelle que soit la nature de ces operations " et de 
" lieu d'observations ou de rendez-vous soit comme bases d'opera- 
tions de guerre ou de buts militaires de toute nature." Je crois 
que chaque navire de guerre belligerant sans exception tombe sous 
l'application de ces articles car je ne peux pas me figurer en tel 
navire qui ne se livre pas a des operations de guerre dans le sens 
large que l'article espagnol attribue a cette expression et que les 
articles correspondants des propositions russes et brittanniques ne 
semblent pas exclure. Aussi ai-je peine a me figurer un navire de 

150 Taking Coal in Neutral Port. 

guerre belligerant qui naviguera saus but niilitaire. (Article 1 

En effet meine si le navire ne fait que surveiller le commerce 
neutre il poursuit sans doute un but niilitaire. Cependant ces 
propositions admettent la possibility pour les navires belligerants 
de s'approTisionner de vivres et de cbarbon (article 5 proposition 
espagnole et article 4 proposition japonaise), mais Particle 5 de 
la proposition japonaise contient encore une restriction qui pour- 
rait etre consideree comme une defense absolue, car elle comprend 
non seulement les navires belligerants se rendant sur le tbeatre 
de la guerre on se dirigeant vers cette meme direction ou vers la 
zone des hostilites existantes, mais aussi ceux dont la destination 
est donteuse ou inconnue. Cette derniere categorie semble com- 
prendre tous les navires belligerants, les commandants de ces 
navires auront tous des orclres qu'il ne leur sera pas permis de 
communiquer aux autorites dans les ports neutres. On pourra 
done les considerer comme ayant presque toil jours une destination 
douteuse ou inconnue* 

II y a ici une ambiguite sinon une contradiction due au sens 
vague des expressions " operationsi de guerre " etc., etc., et je me 
permets d'appeler de nouveau l'attention cle cette Sous-Com- 
mission sur l'interet qu'il y aura it a mieux preciser ces expressions, 
si elles sont indispensables. 

Avant tout, je le repete, la convention sur laquelle la Conference 
tombera d'accord, devra etre precise ami de ne pouvoir donner lieu 
a des malentendus. 

Si l'incertitude qui regne maintenant a defaut de regies conven- 
tionelles. subsiste apres que ces regies auront ete etablies parce 
qu'elles ne sont pas precises, les neutres resteront aux prises avec 
des difficultes qui pourront provoquer des conflits graves. La 
Delegation britannique, dans l'article 10a et &, a formule quelques 
regies positives qui definissent l'expression hose (V operations. 
C'est un systeme que j'approuve, mais je crois qu'il faudrait encore 
ajouter quelques regies negatives ; qu'il faudrait fornmler quelques 
cas qui ne doivent pas £tre consideres comme faisant servir les 
eaux neutres comme base d'operation, par example : 

I. Les ports et les eaux territoriales neutres ne peuvent pas etre 
consideres comme servant de bases d'operations de guerre, si les 
navires de guerre des Etats belligerants y prennent a bord des 
combustibles necessaires pour atteindre le port etranger non 
ennemi qui est le plus proche. 

II. De meme les navires de guerre d'un Etat belligerant qui se 
trouvaient a l'etranger lors du commencement de la guerre, peu- 
vent toujours se pourvoir dans un port ou les eaux territoriales 
neutres des combustibles necessaires pour atteindre un port de leur 
pays sans que par ce fait le port neutre puisse etre considere de 
servir comme base d'operations de guerre. (Ibid., p. 592.) 

Question at Hague, 1907. 151 

Sir Ernest Satow, representing Great Britain, pointed 
out that it appeared necessary to make a distinction — 

entre les approvisionnements qu' on peut effectuer dans un port 
neiitre : il est permis d'acheter des vivres pour nourrir moinentane- 
ment les equipages, tandis que les ravitaillements par les navires 
auxiliaires constitue une veritable operation de guerre. (Ibid., 
p. 594.) 

M. Tcharykow, of Russia, said in speaking of question 
XII, in regard to taking provisions and coal in a neutral 
port : 

Tout le monde, Messieurs, est d'accord pour reconnaitre qu'un 
Etat neutre n'a pas le droit d'augnienter dans ses ports la force 
de combat des navires des belligerants. Car s'il le faisait il favor- 
iserait un belligerant au detriment de l'autre. Mais, pour cette 
meme raison, un Etat neutre n'a pas non plus le droit de diminuer 
dans ses ports la force de combat des navires des belligerants : en 
fjiisant cela il favoriserait l'autre belligerant au depens de celui ci. 
Ces deux procedes seraient egalement contraires au droit des gens 
et constitueraient une infraction a la neutralite de l'Etat en 

Si l'Etat neutre veut eviter les reproches des belligerants, il 
doit s'abstenir de toute ingerence dans la vie interieure du navire 
Ctranger, il ne doit pas s'eriger a son egard, en juge, expert ou 
inquisiteur — un role qui serait fatal pour sa neutralite. S'il veut 
rester vraiment neutre, il doit se bonier a le laisser vivre. 

Or, Messieurs, la vie d'un navire embrasse deux elements qui 
sont indissolublement connexes : les vivres pour son equipage et 
les moyens de locomotion pour lui-meme. Si l'equipage etait 
prive de vivres, les homines deviendraient des cadavres ; prive des 
moyens de naviguer, un batiment devient une epave. Dans les 
deux cas le navire meurt. Mais le tuer est le droit de belligerant 
eunemi, s'il peut y parvenir, ce n'est ni le droit, ni le devoir du 

Ces considerations nous amenent a la conclusion que les restric- 
tions qu'un Etat neutre pourrait, en bon droit, imposer dans ses 
ports a rapprovisiOnnement des navires des belligerants, tant en 
vivres qu'en moyens de locomotion, ne sauraient, en aucun cas, 
prendre les proportions d'une atteinte aux interets vitaux de ces 
navires. L'Etat neutre qui depasserait cette limite dans l'exercise 
de ses droits souverains se rendrait coupable d'un acte peu amical 
a l'egard de l'un des belligerants, il favoriserait illegalement 
l'autre et il s'exposerait de la part de tons au soupcon d'avoir 
viole sa neutralite. 

Par consequent, Messieurs, la " these nouvelle " comme l'a si 
justement appelee la Delegation bresilienne dans son remarquable 

152 Taking Goal in Neutral Port. 

expose du 27 juillet, cette these qui consiste a vouloir refuser aux 
belligerants de s'approvisiouner de charbon dans les ports neutres — 
demande a etre soumise a un exarnen tres attentif afin d'etablir 
jusqu'a quel point elle est conforme aux principes reconnus jusqu'a 
present du droit des gens. 

Cette these est nee non pas de considerations juridiques nou- 
velles, mais exclusivement de nouveaux perfectionnements tech- 
niques. (Ibid, p. 607.) 

The Japanese plenipotentiary, M. Tzudzuki, speaking 
on this matter, said : 

En outre de ce principe non moms universellement reconnu que 
les belligerants doivent s'abstenir de l'usage des ports neutres 
comme bases de leurs operations belliqueuses, il s'ensuit tout 
naturellement que les neutres out le devoir de ne pas permettre 
aux belligerants de faire usage de leurs ports dans le sens indiqu§. 

II me semble qu'il decoule de la, avec nne necessite logique et 
absolue, cette consequence que les ports neutres ne doivent pas 
etre employes dans le but de conserver aux na vires belligerants 
leur force de combat, sans parler de l'augmentation de cette force. 
II me parait ggalenient clair que le charbon, etant tout a fait 
indispensable a ces na vires pour agir comme des unites de combat, 
a une valeur strategique dans la guerre moderne, que l'appro- 
visionnement en charbon est un acte qui appartient a la recupera- 
tion des forces perdues, qu'en consequence le fait de se servir 
de ces ports comme de bases de charbon n'est qu'une de moda- 
lites de s'en servir comme de bases strategiques, ainsi que l'a 
remarque fort bien l'un des auteurs deja cites. 

Nous regrettons vivement de ne pouvoir nous rallier a l'opinion 
que les neutres n'ayant pas le droit de diminuer la force de combat 
des navires belligerants doivent en consequence permettre a. 
ceux-ci de s'approvisiouner dans leurs ports. En effet l'appro- 
visionnemeut en charbon etant un acte indispensable aux bel- 
ligerants pour conserver a leurs navires leur puissance de combat, 
ils n'ont qu'a faire accompagner ces navires par des bateaux 
charbonniers et a s'approvisiouner en pleine mer. C'est la un 
acte de preparation et de prevoyance necessaire et suffisant pour 
une expedition lointaine. Tout ce que nous voulons soutenir, c'est 
qu'il ne doit pas etre abuse des ports neutres ni pour remplacer 
ces bateaux charbonniers ni pour leur permettre d'executer leur 
service auxiliaire. 

II faut de plus ne pas perdre de vue que ces actes d'appro- 
visionnement se font sous 1'abri que la neutralite offre a ces 
navires en leur permettant de rester dans ses ports sans craindre 
d'y etre molestes par leur adversaire, ce qui equivaudrait a dire 
que c'est le concours que donne la neutralite que perinet aux 
belligerants de faire en securite des preparatifs strategiques. 

Review of Situation V. 153 

II y a la ime raison de plus pour que ces navires s'abstiennent 
d'operations qui visent & la recuperation periodique de leur force 
materielle de combat. La meme remarque s'appliquerait, peut- 
elre avec plus de force encore, a l'usage de ces ports pour la 
reparation des avaries, et pour le retablissement des forces de 
l'equipage fatigue de ces navires. 

Les seules exceptions que Ton devrait faire aux principes rap- 
portes ci-dessus, ce sont les cas ou des considerations humanitaires 
prennent le dessus, les cas du mauvais etat de la mer, des avaries 
causees par les dangers de la rner etc. Le fait que la quantite 
de charbon a fournir a ces navires est liinitee par les legislations 
de plusieurs pays dans la mesure necessaire pour atteindre leur 
propre port national, ne fait qu'accentuer l'idee d'asile humani- 
taire qui justifie ces exceptions. De meme la limitation des 
reparations des avaries dans la measure de ce qui est absolument 
necessaire pour la navigabilite, etc., etc. 

La question de fait ou finit l'asile humanitaire et ou commence 
Tabus de cette hospitality en vue de dissimuler des operation ou 
cies preparations strategiques est souvent tres delicate et la reponse 
est tr§s difficile. (Ibid., 461.) 

Base. — The word "base " has been used in many senses. 
It is often coupled with some other word which modifies 
its meaning. The most common expression is "base of 
operations," though " base of supplies," " base of com- 
munications " and other expressions are used. The 
modifying words are differently interpreted. 

The use of neutral territory by a belligerent as a base 
in the sense of a place in which a belligerent may habi- 
tually prepare to wage war more effectively against his 
enemy, fit out expeditions, take refuge, or establish a 
rendezvous is usually regarded as contrary to, or a viola- 
tion of neutrality. The Hague Convention relative to 
the Rights and Duties of Neutral Powers in Maritime 
War provides at the outset that the belligerent shall not 
throw all obligation upon the neutral, saying : 

Aeticle I. Belligerents are bound to respect the sovereiga 
rights of neutral powers and to abstain, in neutral territory or 
neutral waters, from any act which would, if knowingly permitted 
by any power, constitute a violation of neutrality. 

Review of Situation V {2). — It might happen that a 
naval collier would be engaged in the transportation of 
a certain grade of fuel which would not be adapted for 

154 Taking Coal in Neutral Port. 

its own engines, in such ease the collier might obtain coal 
in a neutral port under the restrictions applicable to 
ships of Avar. 

It is well established that the bona fide merchant ves- 
sels of a belligerent may carry on trade with a neutral 
without involving the neutral State in obligation. The 
merchant vessel of the belligerent State would be liable 
to capture, but this would not be a responsibility with 
which the neutral State would be concerned. 

The supplying of Government or other colliers known 
to be in the service of a belligerent State with coal ex- 
cept for their own steaming purposes would be analogous 
to the supply of war material to a belligerent vessel 
which is prohibited. The furnishing of coal in a neutral 
port to a belligerent collier except to enable the collier 
to keep the sea and under the restrictions prescribed for 
ships of war would be in the nature of the use of the port 
as a base. The neutral should prohibit such use. Re- 
ferring to the British proclamation of 1904 allowing to 
the belligerent ships in British ports only — 

so much coal as may be sufficient to carry [her] to the nearest 
port of her own country or to some nearer named neutral desti- 
nation; and no coal shall again be supplied to [her] in the same 
or any other port, roadstead or waters subject to the territorial 
jurisdiction of H. M., without special permission, until after the 
expiration of three months from the time when such coal may 
have been last supplied to her within British waters. 

Prof. Westlake says : 

It is understood that the coal supplied under such a rule shall 
be used in proceeding to the destination which the commander of 
the ship named as being that of which the distance authorized the 
supply, and it may fairly be argued that in proceeding to that 
destination she shall make no captures, since her making any 
during a voyage which she had been expressly coaled for would 
constitute the neutral port her base of operations for the specific 
operation of war constituted by them; only if she is attacked 
during that voyage she may of course defend herself. But the 
legitimation by international practice, however faulty in principle, 
of the mere receipt of supplies without a specification of the use 
to which they are to be put, must imply the legitimation of any 
use to which they may be put. (Westlake, International Law, 
part 2, p. 211.) 

Review of Situation V. 155 

The Government of belligerent State X requests the 
neutral State Z to forbid naval and merchant colliers of 
belligerent State Y to load coal in B, a port of neutral 
State Z, on the ground that this makes B a base for Y. 
The request relates to vessels of two classes, viz, naval 
and merchant colliers. Naval colliers, if belonging to 
or in the service of State Y, would be under the same 
rules as regards coaling as would apply to any ships of 
war of State Y. Merchant colliers not in the service of 
either belligerent would be free to engage in trade in 
coal subject to the usual risks of war. 

Solution V (2). — The Government of neutral State Z 
should heed the request of belligerent State X as regards 
the naval colliers and other colliers belonging to or in 
the service of State Y, though there might be circum- 
stances when it would be justifiable to allow a collier to 
take coal necessary for its own use, but merchant colliers 
may be allowed to take coal. 

Status of colliers. — The status of auxiliary colliers 
was considered at the Naval War College in 1907 in 
Situation II, and it was the conclusion that the regular 
auxiliary colliers were to be treated as public vessels. 
A naval collier would therefore be treated as a vessel of 
the Navy. 

Colliers belonging to the merchant marine and flying 
the merchant flag of a belligerent State are liable to 
capture by the opposing belligerent, but the neutral State 
is under no obligation to restrict the amount of coal 
which they may take on board. 

Similarly colliers belonging to the merchant marine 
of a neutral State may take coal freely as far as neutral 
regulations are concerned. Such vessels will, of course, 
be liable to penalty if engaged in the carriage of contra- 
band or in unneutral service. These penalties do not 
place the neutral State under obligation. 

Penalty for unneutral service. — The penalty for un- 
neutral service, like the penalty for the carriage of con- 
traband, is one which a belligerent may inflict, and un- 
neutral service is not an act which the neutral State is 

156 Taking Coal in Neutral Port. 

bound to prevent. Article 7 of The Hague Convention 
Relative to the Rights and Duties of Neutral Powers in 
Maritime War provides that — 

A neutral power is not bound to prevent the export or transit 
on behalf of either belligerent, of arms, munitions of war, or, in 
general, of anything which could be of use to an army or fleet. 

Of unneutral service the general report of the Interna- 
tional Naval Conference upon the Declaration of Lon- 
don says : 

Chapter III.— Unneutral service. 

In a general way it may be said that the merchant vessel 
which violates neutrality, whether by carrying contraband of 
war or by violating a blockade, affords aid to the enemy, and it 
is on this ground that the belligerent to whose injury she acts 
may make her submit to certain penalties. But there are cases 
where such unneutral service is particularly distiDctive. and for 
which it has been thought necessary to make special provision. 
These have been divided into two classes, according to the gravity 
of the act charged against the neutral vessel. 

In the cases included in the first class (art. 45) the vessel is 
condemned and receives the treatment of a vessel subject to con- 
demnation for carrying contraband. This means that the vessel 
does not lose her neutral character and is entitled to the rights 
conceded to neutral vessels; for instance, she may not be de- 
stroyed by the captor except under the conditions laid down for 
neutral vessels (arts. 48 et seq. ) ; the rule that the flag covers the 
goods applies to the goods which are on board. 

In the more serious cases, which belong to the second class 
(art. 46), the vessel is likewise condemned; further, she is treated 
not only as a vessel liable to condemnation for carrying contra- 
band, but as an enemy merchant vessel, which entails settled con- 
sequences. The rule regarding the destruction of neutral prizes 
does not apply to the vessel, and, as she has become an enemy 
vessel, it is no longer the second, but the third, rule of the decla- 
ration of Paris which is applicable. The goods which are on 
board will be presumed to be enemy goods ; neutrals will have 
the right to reclaim their property on establishing their neutrality 
(art. 59). It would not, however, be necessary to go so far as 
to consider that the original neutral character of the vessel is 
completely lost, so that she should be treated as though she had 
always been an enemy vessel. The vessel may plead that the 
allegation made against her is not just; that the act with which 
she is charged has not the character of unneutral service. She 

Unneutral Service. 157 

has, therefore, the right of appeal to the international court in 
virtue of the provisions which protect neutral property. (Inter- 
national Law Topics, Naval War College, 1909, p. 99.) 

According to the provisions of article 46 of the Decla- 
ration of London — 

A neutral vessel is liable to be condemned and, in a general 
way, is liable to the same treatment which she would undergo if 
she were a merchant vessel of the enemy : 

(1) If she takes part in the hostilities. 

(2) If she is under the orders or under the control of an agent 
placed on board by the enemy government. 

(3) If she is chartered entire by the enemy government. 

It is here prescribed that the belligerent may treat 
the vessel engaged in unneutral service as he would treat 
an enemy merchant vessel. An enemy merchant vessel 
would be permitted to take on such articles in a neutral 
port under present laws as the master of the vessel might 
determine. The transaction is regarded as a business 
transaction and therefore is permitted, though it is un- 
derstood that the neutral will give no protection to the 
parties engaging in the transaction and that the bellig- 
erent may inflict penalty if the property falls into his 

The principles set forth in the preceding discussions 
apply to Situation V (3), (4), (5). 

Solution V (3). — The Government of neutral State Z 
is under no obligation to forbid the supply of cargo coal 
to neutral vessels. 

Solution V (4). — If the collier of belligerent State Y 
has entered or is sojourning in the port of neutral State 
Z in contravention of the regulations of State Z, the 
collier may be interned. 

The colliers flying the merchant flag of neutral State 
Z or neutral State M may be guilty of unneutral service, 
but this does not involve State Z in any obligation to 
intern the colliers. 

Solution V (5). — The colliers should be released if 
their relations to the belligerent have been simply those 
of neutral merchant colliers. Their liability for car- 
riage would be deposited with the cargo. 

158 Taking Coal in X cut ml Port. 

If the colliers were chartered entire by or under the 
orders or control of the enemy government or otherwise 
engaged in unneutral service they would be liable to 

solution . 

(1) As the apparent destination of the cargo is a neu- 
tral port of Z. the commander of the cruiser of Z should 
not withdraw his protection unless he is reasonably cer- 
tain that his confidence has been betrayed. 

(2) The Government of neutral State Z should heed 
the request of belligerent State X as regards the naval 
colliers and other colliers belonging to or in the service 
of State Y, though there might be circumstances when 
it would be justifiable to alloAV a collier to take coal 
necessary for its own use, but merchant colliers may be 
allowed to take coal. 

(3) The Government of neutral State Z is under no 
obligation to forbid the supply of cargo coal to neutral 

(4) If the collier of belligerent State Y has entered 
or is sojourning in the port, of neutral State Z in con- 
travention of the regulations of State Z, the collier may 
be interned. 

The colliers flying the merchant flag of neutral State Z 
or neutral State M may be guilty of unneutral service, 
but this does not involve State Z in any obligation to 
intern the colliers. 

(5) The colliers should be released if their relations 
to the belligerent have been simply those of neutral mer- 
chant colliers. Their liability for carriage would be 
deposited with the cargo. 

If the colliers were chartered entire by or under the 
orders or control of the enemy Government or otherwise 
engaged in unneutral service they would be liable to 

, Situation VI. 


There is war between the United States and State D. 
Other States are neutral. A cruiser of the United States 
enters port N of State F and finds the Robin, a vessel 
registered as belonging to a private citizen of State D. 
The Robin is well adapted for transformation into a 
vessel of war and is taking on supplies of the nature of 
contraband. The commander of the cruiser has reason 
to believe that as soon as the Robin reaches the high 
seas she will be transformed into a war vessel, and in- 
forms the neutral authorities, requesting that the Robin 
be interned or otherwise restrained. 

Is the action of the commander warranted? 

What should the neutral State do? 

What regulations should be made in regard to the 
transformation of private vessels into war vessels ? 


The action of the commander of the cruiser of the 
United States is warranted. 

Neutral State F should take such action as would main- 
tain its neutrality by obliging the Robin to give a 
guaranty that it would not change its private character 
till it reached a port under the jurisdiction of its own 
flag or a port under jurisdiction of an ally; or neutral 
State F may maintain its neutrality by other means of 
restraint, even by internment if necessary. 


General. — The subject of conversion of merchant ves- 
sels into war vessels has naturally received much atten- 
tion since the abolition of privateering. While certain 
States did not accede to the declaration of Paris of 1856 
by which " Privateering is and remains abolished," it 
may be said that the principle of abolition of privateer- 


160 Con version of Merchant Ships Into Ships of War. 

ing is generally adopted. The conversion of merchant 
vessels into war vessels in time of war is, however, ap- 
proved, but the essential difference is in the fact that the 
converted vessel, unlike the privateer, is placed under a 
duly commissioned officer of the State which accepts the 
service, and the State thereby becomes- responsible for 
the acts of the converted vessel. The vessel may have 
belonged to the class of volunteer, auxiliary, or sub- 
sidized vessels with a quasi-public character, or may have 
been a private vessel in the strict sense. To whatever 
class a vessel belongs, it may be expected that a State 
will in time of war on the sea, as well as in time of war 
on land, use so far as possible the resources at its dis- 
posal. It may be further said that such a course is in 
every way justifiable. If the State can call upon its 
citizens to give up their lives in its defense, there is no 
reason why it should not require their property whether 
on land or sea. 

The opposing belligerent is entitled to know, however, 
whether a ship which he may meet is a public or a private 
ship of the enemy, as his conduct must be governed by 
that knowledge. The neutral State is similarly bound 
to distinguish public and private vessels. The neutral 
State may allow a private vessel to remain in its ports 
for an indefinite period. The usual limit of sojourn 
for a public ship of war in time of war is 24 hours. 
Other obligations for the treatment of a belligerent ship 
of war also rest upon the neutral. It is, therefore, very 
important that means should be devised for determining 
the character of vessels flying a belligerent flag in time 
of war. 

Discussion in 1906. — This War College considered in 
1906 the question, " What regulations should be made in 
regard to subsidized, auxiliary, or volunteer vessels in 
time of war ? " 

This discussion was prior to the Second Hague Peace 
Conference of 1907, at which the question of transforma- 
tion of merchant vessels into ships of war was considered, 
but subsequent to the Russo-Japanese War of 1904-5, 

Discussion, 1906. 161 

during which the question had become one of vital im- 
portance and one which gave rise to considerable inter- 
national friction. 

The result of the discussion in 1906, which was as full 
as the limited time of the conference permitted, is shown 
in the following : 

Need of established character. — It is necessary that there should 
be some mark by which the character of a vessel may be estab- 
lished so far as a neutral may be concerned. It is not in any 
way reasonable to expect that a vessel may one day fly a mer- 
chant flag and the next day that of a ship of war and the follow- 
ing day that of a merchant vessel again. If it is proper for a 
vessel to sail from a port as a merchant vessel and on the high 
sea to assume the character of a war vessel, would it not be 
possible to reverse the process and make such changes as fre- 
quently as might serve a belligerent's purpose. 

It is certain that acts of war on the sea should be confined to 
war vessels and that merchant vessels should not visit, search, 
or capture merchant vessels of an enemy or of a neutral. Under 
certain conditions a war vessel may, however, do these things. 
A merchant vessel is subject to the jurisdiction of the port in 
which it may be, so far as the local regulations require. A ves- 
sel of war is to a large extent exempt from local jurisdiction. 
There is little restriction upon the nature of articles which a 
merchant vessel may take on board. A war vessel of a belliger- 
ent in time of hostilities may not in a neutral port do certain 
acts or take certain articles on board which would be allowed 
in time of peace or to a merchant vessel in time of war. 

If no restrictions are made, the neutrals may through igno- 
rance of the character of a vessel furnish it with supplies of a 
forbidden amount or character. A vessel which could change its 
character at will might enter a neutral port repeatedly as a 
merchant vessel and after each departure again assume a war- 
like character, thus making of a neutral port a base. Of course, 
it is not reasonable to expect that such acts would be tolerated. 

Summary : There seem to be certain general considerations 
which should guide in the regulation of the use of subsidized, 
auxiliary, or volunteer vessels : 

1. Such vessels should be during the war public vessels under 
regularly commissioned officers in order that the principle of 
Article I of the declaration of Paris, 1856, may be regarded. 
They should be incorporated in the navy. 

2. The neutral in whose port such vessel may be or within 
whose port such vessel may come is entitled to know the character 
of the vessel in order that the laws of neutrality in furnishing 
supplies, etc., may be observed. 

60252—12 11 

1 62 Conversion of Merchant Ships Into Ships of War. 

3. The character once assumed should not be changed except 
under adequate restrictions in order that reasonable security- 
may be given to the neutral in his relation to the vessel. 

Conclusions : From the foregoing it is evident that the use, for 
all purposes of naval warfare of auxiliary, subsidized, or volun- 
teer vessels, regularly incorporated in the naval forces of a 
country, is in accord with general opinion and practice, and that 
this addition to their regular naval forces in time of war is con- 
templated by nearly all if not all the principal maritime nations. 
In fact auxiliaries have been so used in all recent naval wars. 
To secure for subsidized, auxiliary, and volunteer vessels the 
proper status in time of war, the following regulations are 
proposed : 

1. When a subsidized, auxiliary, or volunteer vessel is used for 
military purposes it must be in command of a dulj r commissioned 
officer in the military service of the Government. 

2. When subsidized, auxiliary, or volunteer vessels, or vessels 
adapted for or liable to be incorporated into the military service 
of a belligerent, are in a neutral port in the character of com- 
mercial vessels at the outbreak of hostilities, the neutral may 
require that they immediately furnish satisfactory evidence 
whether they will assume a military or retain a commercial 

3. Subsidized, auxiliary, or volunteer vessels, or vessels adapted 
for or liable to be incorporated into the military service of a 
belligerent, on entering a neutral port after the outbreak of hos- 
tilities, may be required by the neutral immediately to make 
known whether their character is military or commercial. 

4. Until publicly changed in a home port, such vessels as have 
made known their character must retain as regards neutrals the 
character assumed in the neutral port. 

5. The exercise of belligerent authority toward a neutral by 
subsidized, auxiliary, or volunteer vessels is sufficient to establish 
their military character. (International Law Topics and Discus- 
sions, Naval War College, 1906, p. 122.) 

Propositions at the Second Hague Conference, 1907. — - 
Several States made propositions for the regulation of 
the conversion of merchant vessels into vessels of war at 
The Hague conference in 1907. As there was a consid- 
erable divergence in the point of view of some of these 
States, these propositions are given in full. Great 
Britain proposed to classify and define vessels of war as 
follows : 

II y a deux categories de vaisseaux de guerre : 

A. Vaisseaux de combat. 

B. Vaisseaux auxiliaires. 

Discussion at Hague, 1907. 163 

A. Sera compris dans le terme " vaisseau de combat": Tout 
navire battant un pavilion reconnu, arrae aux frais de l'Etat 
pour attaquer l'enneini et dont les officiers et l'equipage sont 
dumeut autorises a cet effet par le Gouvernement dont ils de- 
pendent. II ne sera pas licite au navire de reveUr ce caractere 
sauf a rant son depart d'un port national ni de s'en devetir sauf 
apres etre rentre dans un port national. 

B. Sera conapris dans le terme "vaisseau auxiliaire " : Tout 
navire marchand, soit belligerant soit neutre, qui sera employe 
au transport de marins, de munitions de guerre, combustibles, 
vivres, eau ou toute autre espece de munitions navales, ou qui 
sera destine a 1' execution de reparations ou charge du port de 
depeches ou de la transmission d'information si le dit navire 
est oblige de se conformer aux ordres de marcbe a lui com- 
munique soit directement soit indirectement, par la flotte bel- 
ligerante. Sera de ineme compris dans la definition tout navire 
employe au transport de troupes militaires. (Deuxieme Con- 
ference Internationale de la Paix, Tome III, p. 1135.) 

Russia : 

Est considere comme batiment de guerre tout navire commande 
par un officier de marine en activite de service et pourvu d'un 
equipage soumis au code militaire. Le batiment doit porter, par 
ordre de son Gouvernement, le Pavilion de guerre, ce qui im- 
plique, des le moment, oil cet ordre est donne, l'inscription du 
batiment dans la liste des navires de guerre de son pays. (Ibid., 
p. 1135.) 

Italy proposed definite limitations on transformation: 

Un navire de commerce ne pourra etre transforme en navire 
de guerre qu'a condition d'etre place sous les ordres d'un officier 
de la marine militaire de son Etat et d'etre pourvu d'un equipage 
soumis ft toutes, les regies de la discipline militaire. 

Les navires qui quittent les eaux territoriales de leur pays 
apr§s l'ouverture des hostilites, ne peuvent cbanger leur qualite 
ni dans la mer libre ni. dans les eaux territoriales d'un autre 
Etat. (Ibid., p. 1136.) 

With this! proposition Mexico agreed. (Ibid., p. 

Netherlands would also impose a penalty as well as 
provide regulations: 

1°. II est permis de transformer un navire de commerce au 
service de l'Etat en navire de guerre. 

2°. Les navires transformed doivent etre commandes par un 
Chef militaire et composes en tout ou en partie d'un equipage 

164 Conversion of Merchant Ships Into Ships of War. 

3°. Le navire transform^ doit battre a sa come et au haut de 
sou mat le pavilion de guerre et la flamnie ou le pavilion de 

4°. La transformation ne peut etre effectuee en temps de guerre 
que dans un port national ; le navire transforme doit y etre 
pourvu d'une commission, fournie par l'autorite competente du 
Gouvernement dont il porte le pavilion. 

5°. Le commandant du navire transforme doit respecter les 
coutumes et les lois de la guerre sur mer. 

6°. Tout navire qui pretend etre navire de guerre sans repondre 
aux conditions ci-dessus formulees, sera traite en vaisseau-pirate. 
(Ibid., p. 1136.) 

Dr. Lammasch proposed in behalf of Austria to add to 
the Netherlands proposition: 

La transformation seia permaiiente pendant toute la dnree des 
hostilites et la re-transformation sera interdite. (Ibid, p. 113S.) 

With this proposition Germany agreed. (Ibid, p. 814.) 
Japan : 

Le navire de commerce ne peut etre transforme en navire de 
guerre que dans les ports nationaux ou les eanx territoriales de 
I'Etat auquel appartient le navire de commerce en question, ou 
dans les ports ou les eaux territoriales occupes par ses forces 
na vales ou militaires. (Ibid, p. 1136.) 

United States: 

Un navire de guerre doit etre commande par un officier regu- 
lierement commissione et avec uh equipage sounds a la loi et a 
la discipline militaires. 

En temps de guerre, aucun navire de commerce ne sera trans- 
forme en navire de guerre, a moins d'etre commande par un 
officier regulierement commissionne et avec un equipage sounds a 
la loi et a la discipline militaires, et aucune transformation de ce 
genre ne pourra avoir lieu sauf dans les eaux territoriales de 
VEtat possedant le navire, ou dans les eaux territoriales sur 
lesquelles il exerce par ses forces militaires, un controle effectif. 
(Ibid, .p. 1137.) 

Questionnaire at Second Hague Conference, 190'/ .—A 
questionnaire prepared b} 7 M. de Martens and submitted 
to the fourth commission at The Hague in 1907, con- 
tained the following questions : 

I. Est-il admis, par la pratique et les legislations, que les 
Etats belligerants puissent transformer des navires de commerce 
en navires de guerre? 

Discussion at Hague, 1907. 165 

II. Dans les cas de transformation des navires de commerce en 
navires de guerre, quelles sont les conditions legales que les 
Etats belligerants devraient observer? (Deitxieme Conference 
Internationale de la Paix, Tome III, p. 1133.) 

Discussion at Second Hague Conference, 1907. — There 
was a general agreement among the delegates to the 
Second Hague Conference that the transformation of 
merchant vessels into war vessels should be allowed. 
(Deuxieme Conference Internationale de la Paix, Tome 
III, p. 745.) 

The question as to where transformation might take 
place called forth difference of opinion. Vice Admiral 
Siegel presented the views of the German delegation. 
He compared the volunteer Navy to the militia or volun- 
teer troops on land which the State might call into service 
in such manner as it saw fit without consideration of 
other States except to the extent that such troops must 
be under a responsible officer and form a part of the 
public forces. He said : 

Or, quelques Delegations proposent que la transformation ne 
puisse etre effectuee que dans les eaux territoriales du pays. 
Je ne crois pas que cette restriction soit juridiquement justifiee 
ou militairement admissible. 

Quoique en general les navires soient mis en service militaire, 
c'est-a-dire soient transformed en navires de guerre, au con- 
mencement de la campagne, et lorsqu'ils seront dans un port 
national, il est nullement defendu de les mobiliser a un autre 
temps convenable, et aucune loi, aucune regie internationale 
n'interdit la transformation en dehors des eaux territoriales en 
mer libre. 

Personne ne pent contester qu'un Etat garde et conserve la 
juridiction des navires de son pavilion qui se trouvent en mer 

Si des lois speciales d'un Etat permettent que les biens de ses 
sujets peuvent etre employes pour les operations de guerre, l'Etat 
peut faire usage de ce droit non seulement en dedans de la 
sphere de sa juridiction territoriale, mais aussi en mer libre, 
qui n'est sujette a aucune juridiction particuliere. 

Un navire de commerce, transforme en navire de guerre en 
mer libre, devient juridiquement un navire de guerre, pourvu 
que les conditions legales exigees pour cette transformation 
soient observees. 

L'idee de la proposition de la Delegation italienne (Annexe 4) 
repond a notre manure de voir. Elle dit en effet que la trans- 

166 Conversion of Merchant Ships Into Ships of War. 

formation doit etre perniise et dans la mer libre et dans les eaux 
territoriales d'un autre Etat, a l'exception des navires qui quittent 
les eaux territoriales de leur pays apres l'ouverture des hostilit6s. 
II me semble que cette derniere condition est trop severe et 
qu'elle peut etre abandonnee. (Deuxieme Conference Inter- 
nationale de la Paix, Tome III, p. 821.) 

Col. Ovtchinnikow, of the Russian Admiralty, said : 

La proposition russe vise les cas oil cette transformation peut 
§tre accomplie meme dans la mer libre. 

Au point de vue pratique, c'est une bypotbese qui peut survenir 
presque cbaque jour pendant les hostility. Par exemple : 

Un batiment de guerre recontre un navire de commerce de son 
adversaire. Selon les coutumes existantes il fait la capture, em- 
barque sur ce navire ses marins, place la prise sous le commande- 
ment d'un officier et arbore le pavilion de guerre. 

Je crois que la transformation qui etait faite dans ces conditions 
doit §tre traitee comme tout & fait legale. Les prises, k partir 
du moment de la capture, sont des navires de guerre. Elles ne 
peuvent £tre traitees comme les pirates et ont le droit de se 
defendre et de se battre contre l'ennemi. Mais je dois indiquer 
que dans ce cas la transformation des navires de commerce, en 
qualite de prises, en navire de guerre, etait effectuee en pleine mer. 

D'autre part, j'envisage une autre nypotn§se. Une flotte on un 
navire de guerre d'un des belligerants recontre en pleine mer un 
navire de commerce de son propre pays. Pourqui cette flotte ou 
ce navire de guerre, ayant le droit de traiter les prises comme les 
navires de guerre, n'aurait-il pas le droit de transformer en navire 
de guerre le navire de son propre pays? Je crois qu'ordinairement 
les transformations seront faites dans les eaux territoriales a 
raison de ce que telle transformation sera toujours beaucoup plus 

Mais il arrive des cas, ou il serait impossible de nier le droit du 
belligerant de transformer des navires de commerce en navires 
de guerre m§me au debors des eaux territoriales. (Ibid., p. 822.) 

The British position was stated at length by Lord 
Keay : 

Pour qu 2 un navire de guerre devienne un navire au service de 
l'Etat, il faut qu'il soit pouryu d'une commission et beaucoup 
d'operations de guerre navales ne peuvent legalement etre entre- 
prises que par un navire appartenant au Gouvernement d'une 
Puissance reconnue et possedant la commission voulue. Un navire 
qui entrerait dans un port neutre comme simple navire de la 
marine marcbande et qui quitterait ce port comme navire de 
guerre avec la commission necessaire aurait subi dans les eaux 
neutres une transformation complete et aurait augments sa valeur 

Discussion at Hague, 1907. 167 

coinrue unite de combat. Or un neutre ne peut, sans violer les 
principes de la neutrality perinettre a un navire belligerant d'aug- 
menter sa valeur comme combattant dans les eaux territoriales 
neutres : il s'ensuit qu'un Etat neutre ne peut permettre, sous 
peine d'encourir le meme reproche, a un navire qui entrerait dans 
ses eaux territoriales comine non-combattant, de quitter ces eaux 
comme navire de guerre dument autorise par un Etat belligerant 
et amenage en vue de prendre part aux hostilites. 

Mais si le neutre est tenu de faire ainsi respecter la neutralite 
de ses eaux territoriales, le belligerant est egalement tenu de 
s'abstenir de la violer. II est done clair que. si le fait pour un 
Etat neutre de permettre a un navire belligerant de se trans- 
former en navire de guerre dans ses eaux territoriales constitue 
une infraction a, la neutralite, il est egalement du devoir du bel- 
ligerant de ne pas commettre un acte de ce genre dans les eaux 
territoriales neutres, et que tout navire qui a ete ainsi transforme, 
au mepris de la neutralite du neutre et des devoirs du belligerant, 
n'a pas acquis regulierement le caractere d'un navire de guerre, 
et que sa qualite comme tel ne doit pas etre reconnue. 

L'objection que nous pouvons elever a regard de la transforma- 
tion en pleine mer est tout autre. Le droit international, tel 
qu'on le comprend a cette heure, permet a un navire belligerant 
regulierement constitue navire de guerre, d'exercer les droits d'un 
belligerant non seulement contre 1'ennemi mais aussi a l'egard 
des neutres. Or un neutre a le droit de savoir jusqu'a un cer- 
tain point quels sont les navires qui pourront exercer ces droits. 
S'il etait loisible a des navires ayant quitte des ports nationaux 
en qualite de navires de la marine mercliande de se transformer 
en pleine mer et d'apparaitre tout d'un coup comme navires de 
guerre, sans que les neutres aient pu prendre connaissance des 
changements, il est certain qu'un tel etat des Glioses occasionnerait 
des incidents regrettables. Toutes les fois done qu'un navire 
aura it ete transforme en navire de guerre en pleine mer ou dans 
des eaux territoriales neutres, il pourrait s'en suivre des compli- 
cations qui memeraient a leur tour a des situations intolerables. 
II n'est possible de parer aux eventualities que je viens de signaler 
qu'en reconnaissant franchenient que le fait de transformer un 
navire en navire de guerre est un " acte de souverainete " dans 
toute l'acceptation du terme, que cette transformation ne peut par 
consequent avoir lieu que dans la jurisdiction nationale et qu'un 
navire de guerre ne sera reconnu comme tel que si cette condition 
a §te observee. (Ibid., p. 822.) 

M. Kenault, a French delegate, shared Lord Beay's 
opinion that transformation in a neutral port would be 
contrary to neutrality, but did not regard the argument 
against transformation on the high sea as valid because 

168 Conversion of Merchant Ships Into Ships of War. 

there the State was sovereign over the vessels flying its 
flag. (Ibid., p. 824.) 

The Netherlands delegate supported the British posi- 

Count Tornielli explained the Italian proposition as 
follows : 

Les navires de commerce qui out quitte les eaux territoriales 
avant l'ouverture des hostilites doiveut pouvoir operer en la mer 
libre ou ailleurs la transformation qui pourra leur permettre de 
resister a une capture possible. Ces motifs ne sauraient militer 
en faveur des navires qui n'out quitte les eaux territoriales 
qu'aprds les hostilites et par consequent ont pu prendre d'avance 
les dispositions necessaires. (Ibid., p. 824.) 

M. Fusinato said, in support of the Italian proposition — 

il y a uu motif dont on n'a pas parle ; il serait facheux qu'un 
navire marchand qui sort d'un port neutre ou il a joui des privi- 
leges de navire de commerce puisse mettre ce privilege a profit 
pour se transformer en navire de guerre. II semble qu'il y aura it 
la un abus de son privilege, et que par suite il lui soit difficile de 
changer sa qua lite meme en mer libre. (Ibid., p< 824.) 

In the comite dSexamen, whose duty it was to consider 
the question of transformation, the German delegate 
supported the position of Russia favoring transforma- 
tion on the high sea. 

The Japanese delegate, on the other hand, would not 
only favor the prohibition of transformation on the high 
sea, but would prohibit transformation in ports of allies 
because such ports were not within the sovereignty of 
the belligerent. 

The question of transformation on the high seas finally 
came before the comite d'examen in the following form : 

Y a-t-il lieu de poser des regies d'apres lesquelles le belligerant 
pourra fa ire en haute mer la transformation de navires de com- 
merce en navires de guerre. (Deuxieme Conference de la Paix, 
Tome III, p. 933. 

In the affirmative were the votes of Germany, Austria- 
Hungary, Argentina, Chile, France, Russia, Servia, and 
in the negative, United States, Belgium. Brazil, Great 
Britain, Italy, Japan, Norway, Netherlands, Sweden. 
The prohibition of transformation on the high seas was 

Hague Convention, 1907. 169 

not determined upon, and in this respect there was no 
international agreement reached, and the preamble of 
the convention upon the subject of transformation dis- 
tinctly states that the place of conversion " remains out- 
side the scope of this agreement." 

Hague convention relative to the conversion of mer- 
chant ships into war ships. — The convention finally 
agreed upon really relates to vessels which have already 
heen converted into war vessels rather than to their con- 
version. The articles bearing on the subject are as fol- 
lows : 

Article 1. 

A merchant ship converted into a war ship can not have the 
rights and duties accruing to such vessels unless it is placed under 
the direct authority, immediate control, and responsibility of the , 
power whose flag it flies. 

Article 2. 

Merchant ships converted into war ships must bear the external 
marks which distinguish the war ships of their nationality. 

Article 3. 

The commander must be in the service of the state and duly 
commissioned by the competent authorities. His name must 
figure on the list of the officers of the fighting fleet. 

Article 4. 
The crew must be subject to military discipline. 

Article 5. 

Eevery merchant ship converted into a warship must observe in 
its operations the laws and customs of war. 

Article 6. 

A belligerent who converts a merchant ship into a warship 
must, as soon as possible, announce such conversion in the list of 

Article 7. 

The provisions of the present convention do not apply except 
between contracting powers, and then only if all the belligerents 
are parties to the convention. . 

170 Conversion of Merchant Ships Into Ships of War. 

It is accepted as a general proposition that a bellig- 
erent under proper regulations will be allowed to use 
his resources upon the sea as well as upon the land. 
The fundamental objection to the use of converted mer- 
chant vessels has previously been the lack of government 
control and responsibility. Such control and responsi- 
bility is now secured. 

These articles provide that war status will be conceded 
to merchant vessels only when under state authority, 
bearing the flag and distinguishing marks of belligerent 
nationality, subject to the command of a duly commis- 
sioned officer, with crew under military discipline, and 
observing the rules of war. 

These articles take the converted merchant vessel out 
of the category of privateers and thus respect the first 
clause of the declaration of Paris of 1856 by which u pri- 
vateering is and remains abolished." This convention 
might properly have the title, "A Convention to Secure 
the Observance of the Declaration of Paris in regard 
to Privateering." The converted merchant vessels be- 
come a part of the navy. 

This had already been provided for in the Regulations 
for the Naval Auxiliary Service of the United States in 
effect April 1, 1907. In Chapter I, 2, of these regulations 
it is provided that "these vessels shall be governed by 
the laws of the United States, by the Navy regulations 
as far as they may be applicable, and by these regu- 

The preamble of the convention is as follows : 

Whereas it is desirable, in view of the incorporation in time of 
war of merchant ships in the fighting fleet, to define the condi- 
tions subject to which this operation may be effected; 

Whereas, however, the contracting powers have been unable to 
come to an agreement on the question whether the conversion of 
a merchant ship into a warship may take place upon the high 
seas, it is understood that the question of the place where such 
conversion is effected remains outside the scope of this agreement 
and is in no way affected by the following rules. 

As the more important naval powers have agreements 
with the steamship companies under which in time of need 

Cases During Russo-Japanese War. 171 

certain vessels may be taken into the public service, the 
place of conversion is a matter of utmost importance, 
and this subject by specific declaration remains outside 
the convention. 

In general, a merchant vessel might be converted into 
a war vessel in a home port, on the high sea, or in a 
neutral port, and under exceptional circumstances within 
the jurisdiction of the other belligerent. 

To conversion in a home port, followed by prompt 
notification as provided for in article 6 of the convention, 
little objection could be raised. 

In the exceptional case of conversion within an enemy's 
jurisdiction there might arise a question of the exercise 
of good faith if a merchant vessel should forthwith be 
converted into a war vessel after it had been allowed to 
take on cargo or make repairs in an enemy's port during 
the days of grace allowed for departure of enemy vessels 
at the outbreak of war. It would seem that a regulation 
should be adopted by which vessels allowed such a 
privilege should retain their merchant character, at least 
until converted in a home port. 

The main questions arise, however, in regard to con- 
version on the high seas, which the convention excludes 
because the powers can not reach an agreement, and 
conversion within neutral jurisdiction, which the con- 
vention does not mention. 

The discussion during the Russo-Japanese War in 
regard to the conversion of the Smolensk and Peterburg 
of the Russian volunteer fleet after they had passed the 
Dardanelles, closed to war vessels, and were upon the 
open sea showed the necessity of some international un- 
derstanding in order to avoid friction. There is no 
provision at present which prevents change of character 
from time to time from merchant to war ship or vice 
versa, unless it be article 6 of the convention, which pro- 
vides that " a belligerent who converts a merchant ship 
into a war ship must, as soon as possible, announce such 
conversion in the list of war ships." It would seem that 
to render this article 6 definite there should be an addi- 
tional clause to the effect that a vessel thus placed in the 

172 Conversion of Merchant Ships Into Ships of War. 

list of war ships should retain this status to the end of 
the war, as some of the delegates contended. 

A neutral State has a right to demand that the status 
of a vessel be not changed from that of a merchant vessel 
to that of a war vessel in such manner as to render the 
preservation of neutrality unnecessarily difficult. It is 
evident that questions as to the observance of neutrality 
might arise if a merchant vessel should enter a neutral 
port and load with supplies which would render the 
vessel of immediate service in war and after taking on 
such supplies assume a war status. What a war vessel in 
time of war ma}^ do in a neutral port is usually strictly 
prescribed. It may remain only for a specified period, 
take on a specified amount of coal, etc. A merchant 
vessel has almost unlimited freedom so long as it observes 
ordinary port regulations. If a merchant vessel may 
change to a war vessel immediately after leaving the 
neutral port or even within the port, a neutral may 
unwittingly allow such a vessel to prepare within the 
neutral jurisdiction to prey on the neutral's own com- 
merce. A neutral port might become practically an 
enemy's base. Many contingencies might arise which 
would emphasize the need of the provisions which the 
seventh Hague convention did not cover though recog- 
nized as desirable and considered to some extent by the 

This convention embodies and makes more definite the 
principles which have been generally followed in practice 
since 1870, when German}^ made her propositions in re- 
gard to a voluntary naval force. It regulates somewhat 
more carefully the use of such vessels after they are en- 
rolled in the public forces. Many questions arose at the 
Hague conference of 1907 which made impossible the 
formulation of generally acceptable rules on all points 
in regard to the conversion of merchant ships into war 
ships. Some of the delegates were absolutely opposed 
to conversion except in a home port. While some of the 
delegates were generally opposed to conversion on the 
high seas, they wished to make exceptions in favor of 
merchant vessels which had left national ports before 

Retrans formation, Hague, 1907. 173 

the outbreak of hostilities and in favor of the conversion 
of merchant vessels captured from the enemy on the high 
sea and adapted to warlike use. Some thought that the 
abolition of capture of private property at sea would lead 
a belligerent to change a ship from a war status to a 
merchant status if in danger of capture in order to bring 
it under the exemption. Great freedom of conversion 
and reconversion was favored by a few of the delegates. 
The need that the character of a vessel be clear to a 
neutral was generally maintained. 

Upon the question justly regarded as the most difficult, 
" the question whether the conversion of a merchant ship 
into a war ship may take place upon the high seas," the 
contracting powers have been unable to come to an 
agreement. As the preamble of the seventh convention 
states, " the question of the place where such conversion 
is effected remains outside of the scope of this agreement " 
and is in no way affected by its rules. Thus, it is evident 
that while provision is made for the abolition of the 
evils of privateering, there remains for a later conference 
the agreement upon such difficult questions as those of con- 
ditions under which a converted vessel may be recon- 
verted into a merchant vessel and the place where con- 
version and reconversion may be allowed. (Wilson: 
Conversion of Merchant Ships into War Ships, American 
Journal of International Law, vol. II, p. 271.) 

Retrans formation. Second Hague Conference, 1907. — 
The question has been raised at different times why 
transformation from a war vessel into a merchant vessel 
is not as legitimate as the reverse. It may be said that 
in time of peace there would be in general no objection 
to such transformation, and that in fact it often takes 
place. The question of retransf ormation was particularly 
brought before the Second Hague Conference by the 
proposition of Dr. Lammasch, of Austria-Hungary, to 
the effect that — 

La transformation sera permanente pendant tonte la duree des 
kostilites et la retransformation sera interdite. 

The Swedish delegate showed that unrestrained trans- 
formation and retransformation would lead to grave 

1 74 Conversion of Merchant Ships Into Ships of War. 

abuses. The British delegate shared this opinion. The 
Japanese delegate proposed that retransformation should 
not be prohibited, but that the place where it might take 
place be restricted. (Deuxieme Conference International 
de la Paix, Tome III, p. 1014.) Finally the question of 
retransformation was left without any decision. 

Attitude of naval powers in 1908. — Before the Inter- 
national Naval Conference of 1908 the States invited 
to the conference were invited to submit their views upon 
the question of conversion of merchant vessels into war 
vessels. The replies to this invitation show a wide 
divergence of views. In some respects the difference of 
views seems wider than at the Second Hague Conference 
in 1907. The range of opinion may be seen from the 
memoranda presented by several of the States : 


1. La transformation des navires de commerce en batiments de 
guerre, visee par la Convention relative & ce sujet et conclue k 
La Haye le 18 Octobre, 1907, ne pourra se faire que— 

(1) Dans les ports et rades ou dans les eaux territoriales des 
belligerants ; 

(2) En pleine iner. 

Les navires ainsi transformed ne pourront §tre retransforni&s 
en navires de commerce pendant toute la duree de la guerre. 
(Proceedings International Naval Conference, Miscellaneous, No. 
5 (1909), p. 108.) 

The Austro-Hungarian proposition discusses the matter 
of transformation, and proposes rules somewhat more re- 
strictive than those generally advocated : 

La question de savoir s'il est licite de transformer, sur la 
liaute mer, des navires de commerce en batiments de guerre, n'a 
pas §t§ traitee par les auteurs. Dans la pratique, l'unanimite 
ne s'est pas faite sur la matiere. Pour resoudre la question, 
Ton ne peut done se baser que sur les aspirations legitimes des 

L'on ne saurait affirmer que, sur la liaute mer, le belligerant 
put a son gre disposer de ses navires. II est vrai que sa souver- 
ainete s'etend sur ces navires. Mais, comme la liaute mer 
est " omnium communis," la souverainete de cliaque Etat y est 
limitee par les interets des autres Etats. 

C'est pourquoi les Etats sont dans leur droit quand ils de- 
mandent que la transformation des navires de commerce en bati- 

Views of Naval Powers, 1908. 175 

inents de guerre ne doit §tre permise que dans des conditions 
garantissant que le trafic pacifique n'aura a craindre ni la re- 
apparition de corsaires ni d'autres inesures vexatoires. Par con- 
sequent, Ton ne peut ni permettre ni defendre, sans restrictions, la 
transformation, sur la haute mer, de navires de commerce en 
batinients de guerre. 

Pour concilier, en l'espece, les interets contraires, il serait peut- 
etre utile le defendre la retransformation des vaisseaux de guerre 
en navires marchands. C'est ce que la Delegation austro-hon- 
groise a deja constate dans la IV e Commission de la II Confe- 
rence de la Paix. II est vrai qu'a cette epoque, ladite proposition 
n'a pas recueilli tous les suffrages quoiqu'on ne saurait admettre 
qu'elle put etre contraire aux interets de qui que ce soit. 

Si, a 1'avenir, cette proposition n'etait pas plus favorablement 
accueillie, Ton devrait — puisque tout le monde doit desirer une 
solution de la question — rechercher d'autres moyens susceptibles 
de premunir les neutres contre les empietements des belligerants. 

Ainsi qu'il appert des termes dans lesquels la question a ete 
posee au programme ("on the high seas"), il importe actuelle- 
ment de completer, dans un point essentiel, la Convention relative 
a la transformation des navires de commerce en b&timents de 
guerre et signee a La Haye en 1907. Et, comme il resulte des 
discussions qui se sont engagees, en cette matiere, au sein de ladite 
Conference, il ne s'agit point, a proprement parler, d'etablir une 
definition de la notion " vaisseau de guerre," mais plutot de de- 
terminer les conditions & remplir par les navires transformed pour 
etre admis H exercer le droit de prise contre les neutres. Pour 
accomplir cette mission d'une maniere reelle et efficace, il leur 
faudrait un armement de quelque importance et une vitesse 
superieure a celle que les navires de commerce possedent en 
general. En erablissant ces deux conditions exigees par la nature 
meme des choses on offrirait aux neutres des garanties precieuses 
sans leser les interets legitimes des belligerants. 

Enfin, l'art. 6 de la Convention sus-visee pourrait paraitre 
insuffisant. Si le belligerant n'est oblige qu'a inscrire le navire 
transforme sur la liste de ses batiments de guerre, les neutres — et 
voila l'important — n'ont aucune connaissance de la transforma- 
tion operee. Pour cela, il faudrait une notification. De meme, 
la retransformation — si, d'une facon generale, elle etait declaree 
licite, ne fut-ce que dans des ports nations ux — devrait gtre 

En resume, l'on pourrait soumettre la transformation — sans 
distinguer si elle doit avoir lieu dans des eaux nationales, dans 
des eaux territoriales occupies par un belligerant, ou sur la haute 
mer — aux conditions supplementaires que voici : 

1. Un minimum de bouches a\ feu d'un certain calibre; 

2. Un minimum de vitesse ; 

176 Con version of Merchant Ships Into Ships of War. 

3. Notification immediate avec indication de l'endroit on la 
transformation, voire la retransformation, a eu lieu ; 

4. Desarmement effectif, en cas de retransformation ; 

5. Mention, dans la notification, des circonstances relatives 
aux points, 1, 2, et 4 ; 

6. Responsabilite de Etat pour tous les dommages eprouves par 
des Etats tiers ou leurs ressortissants a la suite d'une contraven- 
tion contre les regies enumerees ci-dessus. (Ibid., p. 108.) 


II existe de considerables differences juridiques entre le navire 
de guerre et le navire de commerce, meine si celui-ci arbore le 
pavilion belligerant. La diversite est caracterisee et definie par 
les rapports de l'un et de l'autre vaisseau, non seulement avec les 
autorites de leur pays, mais avec les autorites, les forces et les 
persoimes et proprietes privees de l'ennemi anssi bien que des 
Puissances neutres. Si ime erreur ou simplement une equivoque 
se produisait a 1'egard du caractere du navire, il deviendrait 
impossible pour les tiers de discerner a qui sout defendues et & 
qui sont consenties les facultes iuherentes a. Taction militaire de 
l'Etat, D'autre part, les regies qui einpechment requipement d'un 
vaisseau ou d'une expedition militaire dans un port neutre pour- 
raient resulter inefficaces si le cbangement de condition du navire 
sur la haute mer etait permis. Chaque navigation, enfin, est reglee 
et qualified par des papiers delivres dans un port a destination 
d'un autre. Si l'Etat lui-meme soustrait ses navires aux effets des 
documents, ceux-ci restent sans valeur. Pour toutes ces raisons la 
transformation des navires de commerce en navires de guerre en 
pleine mer doit etre declaree nulle. (Ibid., p. 109.) 


Tous les Etats jouissant sur un pied d'egalite absolue en baute 
mer du plein exercice de leur souverainete a l'egard des navires 
do leur pavilion, sont, en consequence, libres de les y soumettre 
a telles mesures de mobilisation ou transformation militaire qu'il 
leur convient d'ordonner. (Ibid., p. 109.) 


Cette question n'est pas prevue par le droit positif italien. 

La Delegation italienne a la deuxieme Conference internationale 
de la paix a propose une resolution a cet egard dans les termes 
suivants : 

" Les navires qui quittent les eaux territoriales de leur pays 
apres l'ouverture des hostilities ne peuvent changer leur qunlite 

View of Naval Powers, 1908. 177 

ni clans la iner libre ni dans les eaux territoriales d'nn autre 
Etat." — (IV e Commission, annexe n. 17.) (Ibid., p. 110.) 


Uri navire de commerce ne peut pas etre transforme en bati- 
ment de guerre ou retransforme en navire de commerce par un 
belligeraiit, si ce n'est dans un port ou dans des eaux territoriales 
appartenant an dit belligerant ou a son allie, ou occupees par leurs 
forces militaires ou navales. (Ibid., p. 110.) 


(1) La transformation d'un navire de commerce en navire de 
guerre ne pent avoir lieu que dans le territoire ou les eaux terri- 
toriales de la Puissance, dont il portera le pavilion. 

(2) Un navire de commerce transforme en navire de guerre ne 
pourra perdre ce caractere avant la fin de la guerre. (Ibid., 
p. 111.) 



La transformation d'un navire de commerce en batiment de 
guerre peut avoir lieu, au cours des hostilities, dans les eaux 
territoriales du belligerant ainsi qu'en haute mer. Dans les deux 
cas, les belligerants sont tenus d'observer les regies prescrites 
par la convention relative a la transformation des navires de 
commerce en batiments de guerre signee a La Haye le 18 Octobre, 
1907. (Ibid., p. 111.) 

Such differences of view show that the question upon 
which no solution had been reached at The Hague in 
1907, was even after the discussion at London far 
from settlement. Indeed the divergency of view at the 
International Xaval Conference in 1908 was so wide that 
it was not possible to formulate a satisfactory basis for 
discussion. The discussion at that conference of the gen- 
eral subject of conversion of merchant vessels into war 
vessels did not bring about uniformity of opinion. 

Discussion in 1908-9. — The discussion at the latest in- 
ternational c( nference before which the conversion of 
private vessels into war vessels is valuable as evidence 
of the problems which must be solved before agreement 
is reached. 

60252—12 12 

178 Conversion of Merchant Ships Into Ships of War. 

It was natural that the experience of Russia in the 
Russo-Japanese War of 1904—5 should cause that State 
to take a lively interest in the subject. The Russian 
delegate to the International Naval Conference of 
1908-9 set forth the Russian position at length. 

Dans l'opinion cle la Delegation russe, mi seul point pourrait 
se degager avec certitude de l'examen des differents memorandums 
en ce qui concerne la transformation des navires de commerce 
en batiments de guerre en haute mer. C'est, notamment, l'obser- 
vation qui se trouve deja formulee dans l'"Expose des Vues " 
prepare par les soins du Government Britannique, a savoir, que, 
dans cette question, " il n'existe actuellement aucun principe 
commun reconnu de tous."' Aussi voyons-nous des memorandums 
qui nient purement et simplement le droit du belligerant de 
transformer en haute mer ses navires de commerce en batiments 
de guerre, tandis que d'autres le reconnaissent expressement. Le 
Gouvernement Russe partage cette derniere maniere de voir, en- 
semble avec les Gouvernements d'Allemagne et de France, et la 
Delegation Russe appelle 1'attention toute particuliere de la Con- 
ference sur ce fait que, si le point de vue de ces trois Puissances 
represente, parait-il, l'opinion de la minority de la Conference, 
cette minorite n'en defend pas moins un principe logiquement et 
juridiquement beaucoup plus solide que celui de la majorite. 
Car il parait tout a fait impossible de prouver par des arguments 
d'ordre juridique, pour quelles raisons un Etat souverain, exereant 
incontestablement a l'egard de ses navires en haute mer sa pleine 
souverainete dans toute l'etendue des droits qu'il exerce sur son 
propre territoire, serait prive de la faculte de les transformer, le 
cas echeant, en batiments de guerre. Et si, pour titer un exemple 
plus ou moins analogue, invoque en 1907 a La Haye par le 
Colonel Ovtchinnikow, personne ne s'etonne de voir un navire de 
commerce ennemi, capture, se transformer pendant qu'il est 
conduit en qualite de prise et sous pavilion du capteur, en 
ba\timent de guerre, pourquoi ne devrait-on pas admettre, a 
fortiori, au profit du belligerant le meme droit de transformation 
a l'egard de ses propres navires de commerce? 

II est vrai que des interets fort serieux des neutres y sont en 
jeu, et que c'est surtout la crainte des abus possibles qui fait 
protester contre ce droit de transformation en haute mer. Mais 
des regies deja adoptees en cette matiere a la Haye en 1907 — 
qui assurent tant la publicite de la transformation que la com- 
plete militarisation du navire — nous semblent constituer une 
serieuse garantie contre ces abus. Aussi, le memorandum russe, 
dont je defends integralement la proposition, ne proclame-t-il le 
principe de la transformation en haute mer que sous la reserve 

Discussion at London, 1909. 179 

expresse de l'observation des regies susnientionneses prescrites 
par la Convention y relative du IS octobre, 1907. — (Proceedings 
of the International Naval CoEference, Parliamentary Papers, 
Miscellaneous, No. 5 (1909), p. 263.) 

The German opinion was in many respects similar to 
that of Russia. The place of conversion is not regarded 
as a matter of much importance. 

Je ne puis que m'associer purement et simpleinent aux paroles 
de M. le Delegue plenipotentiaire de Russie. Apres un examen 
approfondi et repete de la question, nous sonmies toujours con- 
vaincus que la militarisation des navires de commerce en haute 
mer n'est pas interdite par le droit existant et qu'il n'y a aucune 
raison qui justifie son interdiction a l'avenir. Dans la lecture 
des Memorandums des differentes Puissances nous n'avons puise 
aucun element qui ait ebranle cette opinion. 

II est vrai que le Memorandum britannique fait valoir les dan- 
gers qu'il y aurait pour le commerce neutre s'il elait permis 
d'exercer le droit de visite a l'aide de navires que les neutres 
croiraient etre de pacifiques navires de commerce et qui auraient 
ete soudainement et sans avertissement convertis en bailments de 
guerre, peut-etre dans le voisinage immediat de navires qu'ils 
desirent arreter et visiter. Je dois, cependant, avouer que je ne 
comprends pas pourquoi la militarisation en pleine mer devrait 
etre regardee comme une nouvelle restriction a la securite du 
commerce ou a la liberte de la navigation. Les navires trans- 
formes en pleine mer n'exerceront d'autres droits et n'imposeront 
au commerce d'autres restrictions que les navires que sont trans- 
formes dans les ports nationaux ou que les vaisseaux de combat; 
si lenr caractere militaire n'est pas connu d'avance ou meme si ce 
caractere n'est revetu que dans le voisinage d'un navire neutre, 
cela ne semble point aggraver la situation de la navigation legitime 
et inoffensive. II va de soi qu'avec l'augmentation des batiments 
de guerre le belligerant est mieux en mesure de surveiller et de 
reprimer le commerce de contrebande, et il n'y a pas de doute que 
les navires qui se livrent a cette navigation prohibee en patiront. 
Mais le commerce pacifique n'a d'autres interets que ceux qui sont 
sauvegardes par la Convention relative a la transformation qui 
a ete elaboree a La Ha ye. Des que la loyaute et la realite de la 
transformation sont garanties que le navire transforme observe 
les lois et coutnmes de la guerre et que son equipage est soumis 
a la discipline militaire, le lieu de la transformation ne parait 
etre d'aucune importance. (Ibid., p. 264.) 

The British point of view was presented in a compre- 
hensive expose on January 15, 1909. This expose ad- 
mitted that there was no existing law upon the subject 

180 Con vers ion of Merchant Ships Into Ships of War. 

of conversion, and maintained that unrestricted conver- 
sion would impair the rights of neutrals and might differ 
little from privateering. Such vessels might retain an 
appearance ox private vessels till exercising some bellig- 
erent right toward a neutral. Such vessels might abuse 
neutral privileges as said in the British expose : 

La vue cle la Delegation Britannique se trouve resumee au Chap- 
it re 6 du Memorandum britannique, aux pages 93 et 204 du livre 
rouge, et MM. les membres de la Conference n'ignorent certaine- 
ment pas les arguments qu'ont fait valoir a l'appui do cette vue les 
Representants de la Grande-Bret agne a la Deuxieme Conference de 
la Paix. La Delegation Britannique n'ernet pas la suggestion qu'il 
exist e a ce sujet une regie generale quelconque du droit inter- 
na I Lonal, que ce soit a l'appui de sa propre vue ou de celle de ces 
Puissances qui considerent la transformation en pleine mer comme 
permise, mais elle maintient l'opinion que, puisque le principe 
de la transformation en pleine mer des navires de commerce d'un 
belligerant en vaisseaux de guerre n'est pas reconnu par une 
regie existante du droit international, 1'admission de cette trans- 
formation comme reguliere se trouve en contradiction avec les 
droits des neutres et avec les principes de la courtoisie iuter- 

Par la Declaration de Paris les signataires de cet accord out 
declare la course abolie, et les principes de cette Declaration out 
ete depuis lors mis a execution par des Puissances qui ne l'ont 
pas signee. Je n'estime pas que les Delegues d'aucune Puissance 
representee ici soient disposes a defendre la course comme con- 
forme aux sentiments modernes et aux principes qui gouverneront 
la guerre maritime a l'avenir. 

An sens de la Delegation Britannique, l'exercice de la faculte 
de transformer les navires de commerce en batiments de guerre a. 
tout moment et en tout endroit, en dehors des eaux territorial es 
neutres, pourrait, bien qu'il se distingue de la course, amener des 
consequences encore plus nuisibles que celle-ci au point de vue 
du commerce neutre pacifique. Du temps de l'existence de la 
course, les navires de commerce neutres se rendaient bien compte 
des dangers qu'ils couraient d'etre visites et saisis par les vais- 
seaux de la course aussi bien que par les batiments de guerre des 
belligerants, mais si la faculte de la transformation s'exercait 
de la facon que Ton voudrait autoriser, les navires neutres se 
trouveraient exposes a l'arret, a la visite, et il se peut meme k 
la saisie par des vaisseaux conn us peut-etre par les neutres pour 
avoir ete" des navires de commerce pacifiques faisant un service 
reguTer. De tels navires transformed n'auraient aucune obliga- 
tion de declarer leur qualite de vaisseaux belligerants jusqu'a ce 
que le neutre leur eut permis de l'accoster et de l'arreter. II est 

Discussion at London, 1909. 181 

merne permis de se poser le cas ou ils navigueraient en compagnie 
de navires de commerce semblables jusqu'au moment qu'ils juge- 
raient opportun pour se transformer en vaisseaux de guerre et 
pour faire valoir leur droit de visite et de saisie. De tels vais- 
seaux pourraient se trouver dans des ports neutres par toute l'eten- 
due du monde et seraient ainsi en mesure d'y guetter le depart de 
navires neutres qu'ils pourraient soupgonner de porter de la con- 
trebancle, d'accompagner hors du port, ou de poursuivre immedi- 
atement, ces navires neutres et, transformers tout de suite apres 
leur depart, de faire valoir leur qualite de vaisseaux de guerre 
belligerants. Encore, bien qu'un tel navire put se trouver dans 
rimpossibilite d'atteiudre son port d'origine comme navire de com- 
merce sans s'exposer au risque imminent de la capture par un 
belligerant, il lui serait toutefois possible d'atteiudre une route 
commerciale quelconque ou il pourrait exercer ses droits bel- 
ligerants en faisant tout simplement voile d'un port neutre & 
un autre en guise de navire de commerce jusqu'au moment ou 
il fut arrive a l'endroit opportun pour entreprendre ses opera- 
tions guerrieres. II pourrait, sous pavilion de commerce, de- 
meurer aussi longtemps qu'il voudrait dans n'importe quel port 
neutre, faire sans restrictions les provisions et le charbon, se 
soustraire a la capture en se refugiant dans un port neutre 
jusqu'& ce que le danger fut ecarte, et ainsi, bien que son voyage 
entier fut entrepris dans le but de faire fonction de vaisseau 
belligerant, il ne serait sounds & aucune des regies de la Conven- 
tion applicables aux vaisseaux belligerants dans les ports neu- 
tres, " c'est-a-dire, il emploierait eff ectivement les ports neutres 
comme base de ses operations guerrieres subsequentes. II me 
parait evident que des neutres puissants n'admettraient point 
sans protestation la capture de leurs navires par des vaisseaux 
de guerre ainsi constitues, et une semblable procedure comporte- 
rait done le risque serieux d'etendre le theatre de la guerre, 
6ventualite laquelle les deux Conferences de la Paix ont eu assure- 
ment pour objet d'eviter, comme e'est aussi le cas pour la Con- 
ference actuelle. 

Cette pratique pourrait egalement rendre difficile et delicate au 
plus haut degre la situation des neutres de puissance inferieure 
dont les ports avaient heberge de tels vaisseaux. Tandis que 
l'un des belligerants revendiquerait pour ses navires, jusqu'au 
moment meme de leur transformation, le traitement de navires 
de commerce, l'autre ne manquerait pas de demander aux neutres 
de refuser a ceux-ci le droit de se servir de ports neutres dans 
le but indique, de sorte que, a n'importe laquelle des deux Puis- 
sances le neutre finit par ceder, il risquerait de se trouver en 
guerre avec l'autre. 

Ces considerations offrent, a l'avis de la Delegation Britannique, 
des raisons importants d'exclure le droit de la transformation 

182 Conversion of Merchant Ships Into Ships of War. 

en mer, ou du moms d'empecher une telle transformation de 
s'effectnor avant qu'un delai tres considerable ne soit ecoule du 
moment ou le vaisseau ait quitte son dernier port neutre. Ce- 
pendant, une telle provision ne diminuerait qu'a un degre insig- 
nifiant les inconvenients de la transformation en pleine mer, et la 
Delegation Britannique estime que, si en effet un tel principe 
peut etre admis de quelque maniere que ce soit, on devrait lui 
imposer telles restrictions qui offriraient des garanties solides 
contre les surprises et contre ce que Ton pourrait meine qualifier 
de pieges tendus an commerce neutre. On pourrait peut-etre 
etablir les garanties requises au moyen d'un avertissement de 
nature satisfaisante portant que certains navires de commerce 
appartenant a un belligerant etaient destines, au moment de 
Tou vert are des hostilites ou apres, k etre transformed en vais- 
seaux de guerre si le proprietaire belligerant jugeait necessaire 
une telle mesure. Pour etre de quelque utilite, un tel avertisse- 
ment devrait etre publie et porte a la connaissance des Puissances 
neutres au moyen d'une notification ou autrement avant le com- 
mencement de la guerre, et de tels navires devraient etre portes 
sur la liste de la marine de guerre du proprietaire belligerant. 
La notification apres transformation effectuee n'aurait qu'une 
valeur relative, et probablement minime, au point de vue des 
neutres, puisqu'elle ne saurait atteindre des navires deja en mer 
ou faisant escale dans des ports depourvus de communication 

II est evident que les Etats neutres dans les ports desquels 
s'etaient refugies des navires de cette categorie ne seraient guere 
justifies a accorder sans restrictions a de semblables vaisseaux de 
guerre in posse la pleine mesure d'hospitalite habituelle pour le 
cas des navires de commerce de bonne foi appartenant a un bel- 
ligerant, mais la nature exacte des limitations a imposer a la 
visite aux ports neutres de ces vaisseaux changerait evidemment 
avec les circonstances. Dans le cas ou l'Etat belligerant n'aurait 
aucune intention de profiter de sa faculte de transformer un 
navire quelconque, il pourrait se plaindre avec justice de rimpo- 
sition par le neutre de toute restriction en ce qui concerne la 
quantite de charbon a fournir a ce navire, la duree de son sejour, 
&c, comme d'un acte sans justification et ineme d'hostilite. Si, 
par contre, de telles restrictions ne devaient jamais s'imposer, il 
y aurait grand danger que Ton n'abusat de l'liospitalite du neutre. 
Une solution satisfaisante de cette difficulte n'est point facile a 

Le memorandum austro-hongrois a suggere d'autres conditions 
a imposer qui pourraient legalement etre prises en consideration, 
mais dans la vue de la Delegation Britannique la notification 
offrirait le seul avertissement pratique et suffisant. 

Discussion at London, 1909. 183 

La Delegation Britannique n'est pas en mesure, sans instruc- 
tions ulterieures, de declarer d'une maniere definitive que ces con- 
ditions ou d'autres lui seraient acceptables, mais quelque attenu- 
ation cle la pretention mise en avant serait en tout cas ngcessaire 
pour mettre le Gouvernement Britannique a meme de modifier 
1'opinion qu'il ne devrait etre permis a ax na vires de commerce 
de se transformer en batiments de guerre que dans les ports ou 
dans les eaux territoriales du belligerant ou de son allie. II est 
pret cependant a tenir compte, dans un esprit de conciliation, 
de toute proposition pouvant avoir pour effet de sauvegarder le 
commerce neutre contre les dangers que j'ai cites. (Ibid., p. 264.) 

The Italian delegation submitted and maintained the 
same proposition which Italy had supported at the 
Second Hague Conference. 

La proposition que la Delegation italienne a l'honneur de 
soumettre a la Conference reproduit exactement la proposition 
formulee a ce sujet par la Delegation d'ltalie a la Deuxieme 
Conference de la Paix, savoir : — 

" Les navires qui quittent les eaux territoriales de leur pays 
apres l'ouverture des bostilites ne peuvent changer leur qualite ni 
dans la mer libre, ni dans les eaux territoriales d'un autre Etat." 

La question est bien delicate et difficile. II s'agit en effet de 
concilier la regie qui parait decouler, an point de vue tbeorique, 
des principes concernant le libre exercice du droit de souverainete" 
en dehors des eaux territoriales neutres, avec des difficultes 
pratiques tr§s serieuses, concernant la bonne foi et la s£eurite du 
commerce des neutres. Notre proposition est concue dans l'esprit 
de sauvegarder, autant que possible, la liberie des belligerants, 
avec les interets et la neutrality des pays tiers. 

Un navire qui, an moment de 1'oaverture des bostilites, se 
trouve dans les eaux territoriales de son pays, peut etre trans- 
forme, dans les eaux niemes, en batiment de guerre : la faculte 
qu'on lui accorderait de se transformer ensuite, en pleine mer, 
apres avoir joui peut-etre, dans des ports neutres, des privileges 
propres,des navires de commerce, pour faciliter sa transformation 
ulterieure, pourrait impliquer, dans bien des cas, un abus de ces 
privileges et une certaine atteinte a la bonne foi des neutres. La 
restriction que, pour ces motifs, et d'autres encore, il parait utile 
d'apporter aux droits souverains cle l'Etat belligerant vis-a-vis 
de ses navires marcbands, semblerait, cependant, excessive et 
ne serait pas, d'ailleurs, egalement .iustifiee, dans le cas on le 
navire en question eiit quitte" les eaux territoriales de son pays 
avant la guerre. II ne pourrait pas, en effet, etre soupconne" de 
mauvaise foi vis-a-vis des neutres, et il serait exorbitant de le 
forcer a rentrer (peut-etre par un long voyage) dans un port 
national pour y operer une transformation qui put le mettre en 

184 Conversion of Merchant Ships Into Ships of War. 

mesure de se defendre contre les navires adversaires, et de porter 
son concours aux forces armees de son pays. II stiffit de declarer, 
uans ce cas, que la transformation ne ponrra jamais avoir lien 
dans les eaux territoriales d'un pays neutre. Le principe de la 
iiberte de transformation en pleine mer garderait, dans ce cas, 
eu egard a la situation speciale des navires en question, toute sa 
valeur. (Ibid., p. 266.) 

The Austro-Hungarian position, while maintaining the 
freedom of the sea, recognized that the doctrine of free- 
dom for each State must recognize the rights of others, 
and proposed to prohibit retransformation during the 
period of the war and to require ample notice in case of 

L'on ne saurait contester, de l'avis de mon Gouvernement, que 
les Etats aient, en principe, plein droit de transformer leurs 
navires de commerce en haute mer. Mais comme la pleine mer 
est omnium communis, l'exercise de la souverainete de chaque 
Etat y est lhnite par les interets legitimes des autres Puissances. 

Aussi avons-nous demande dans notre memoire que la transfor- 
mation ne soit permise que dans des conditions garantissant le 
commerce pacifique contre des mesures vexatoires ou dangereuses. 
Nous avons propose, dans cet ordre d'idees, de subordonner la 
transformation k deux conditions principales, savoir : 

1. A l'interdiction de la retransformation durant la guerre des 
navires militarises ; 

2. A la notification en temps utile de la transformation. (Ibid., 
p. 267.) 

The German plenipotentiary, referring to the Italian 
and Austrian propositions, said: 

II faut rendre hommage it l'esprit de conciliation qui a amene 
M. le Delegue Plenipotentiaire d'ltalie a faire la proposition dont 
il vient de nous donner les motifs. Je ne sais cependant s'il 
ne se trompe pas au point de vue pratique en supposant que 
les navires qui au moment de l'ouverture des hostilites se trouvent 
dans leurs eaux nationales seront ton jours a m£me d'y prendre 
d'avance leurs dispositions militaires. Les marins parmi nous nous 
diront peut-etre qu'au cours de la guerre la necessite peut se 
presenter de militariser un navire dont on ne croyait pas avoir 
besoin au debut, et qu'on voulait laisser continuer sa navigation 

Avec la regie proposee par M. Eusinato line Puissance serait 
forcee ou a retenir dans ses ports tout navire susceptible de 
transformation par crainte de se priver d'une chance peut-etre 
eloignee de s'en servir comme batiment de guerre, ou a renoncer 

Discussion at London, 1909. 185 

a la transformation de ces navires qu'elle aurait une fois laissee 
partir de ces ports. 

Au point de vue juridique, je ne crois pas qu'on puisse etablir 
une distinction entre les navires qui, au debut des hostilites, 
sont encore dans leurs ports nationaux et ceux qui a ce moment 
se trouvent dans des ports neutres. II me semble que les raisons 
qu'on peut alleguer pour la liberte de la transformation des uns 
sont aussi applicables a celle des autres. 

En ce qui concerne les propositions de son Excellence le Delegue 
Plenipotentiaire d'Autriche-Hongrie, qui tendent a, rendre obliga- 
toire la notification de toute transformation et a interdire la 
retransformation pendant la duree de la guerre, je crois qu'elles 
meritent une attention toute particuliere. J'aime a esperer que 
sur cette base on arrivera k une solution qui donne satisfaction k 
tous les interesses. (Ibid., p. 267.) 

The Netherlands delegation indorsed the position taken 
by the British delegation. 

The American delegation submitted the following 
brief regulation : 

" En temps de guerre, aucun navire prive ne sera transforme 
en batiment de guerre, a moins d'etre commande par un officier 
regulierement commissionne et muni d'un equipage soumis a la 
loi et a, la discipline militaires, et aucune transformation de ce 
genre ne pourra avoir lieu sauf dans les eaux territoriales de 
l'Etat proprietaire du navire, ou dans les eaux territoriales sur 
lesquelles il exerce, par ses forces militaires, un controle effectif." 
(Ibid., p. 26S.) 

Result of discussion of 1908-9. — The committee to 
which the subject of conversion was referred gave care- 
ful consideration to the matter, but acknowledged in their 
report to the conference that they had failed in trying to 
reach an agreement. After reviewing the discussion 
upon the question, the report says : 

Tous admettaient la faculte de transformer pendant la guerre 
un navire de commerce en batiment de guerre, mais se separaient 
quand il s'agissait de determiner le lieu ou cette transformation 
elait possible. 

Certains distinguaient entre les navires quittant les eaux terri- 
toriales de leurs pays apres l'ouverture des hostilites et ceux qui 
les avaient quittees auparavant. Ces derniers auraient pu se 
transformer en pleine mer, tandis que les premiers n'auraient 
pu le faire que dans un port de leur pays. On tenait ainsi compte, 
dans une certaine mesure, de la situation dans laquelle pouvait se 
tiouver un pays qui, lors de l'ouverture des hostilites, aurait des 

186 Con version of Merchant Ships Into Ships of War. 

navires transformables naviguant dans des regions eloignees de 
ses ports nationaux. 

Quelques-uns de ceux qui niaient, en principe, la faculte d'operer 
une transformation en pleine mer et qui invoquaient principale- 
ment en ce sens l'interet pour les neutres de connaitre les navires 
ayant les droits de belligerant, admettaient cette faculte dans la 
mesure ou elle aurait ete compatible avec cet interet ; pour cela, 
ils exigeaient une notification, faite en temps de paix, des navires 
aptes a etre transformes, a quoi Ton objectait qu'un Gouverne- 
ment ne sait pas toujours a l'avance quels seront ses besoins 
pendant la guerre, que cela depend des circonstances, de l'ad- 
versaire notamment, enfin qu'une pareille notification pourrait 
renseigner sur le plan de mobilisation. 

Ceux qui affirmaient le droit de transformation, voulant tenir 
compte des considerations invoquees en sens contraire, exigeaient 
que le fait de la transformation fut notifie le plus tot possible aux 
Gouvernements neutres, sans que, du reste, le navire transforme 
dtit attendre cette notification pour exercer ses droits de belliger- 
ant ; il suffisait pour cela qu'il eut satisfait aux conditions exigees 
par la Convention du 18 octobre, 1907. 

Une opinion intermediare s'est fait jour ; elle etait inspiree par 
le desir de donner une certaine satisfaction aux deux opinions 
extremes, de tenir compte de l'interet des neutres sans sacrifier 
celui des belligerants. La transformation en haute mer aurait 
ete possible a la condition qu'elle flit portee a la connaissance des 
neutres avant l'exercice des droits de guerre par les batiments 
transformes. Cette opinion a souleve des objections de nature 
diverse, d'ordre pratique notamment, et cela de la part de ceux 
qui professaient les deux opinions opposees. C'est le rejet de cette 
opinion qui a determine la conviction que, pour le moment, il n'y 
avait pas chance d'arriver a une entente, et que Ton devait se 
borner a cette constatation. 

Une question qui se rattache a la precedente et sur laquelle il 
a pu paraitre a un moment possible d'arreter une resolution, est 
celle de la retrans formation. D'apr§s une proposition, ''les 
navires de commerce transformes en batiments de guerre ne 
pourront etre transformes en navires de commerce pendant toute 
la duree de la guerre." La regie etait absolue et ne distinguait 
pas suivant le lieu ou pourrait s'operer la retransformation ; elle 
etait inspiree par la pensee que cette transformation aurait tou- 
jours des inconvenients, produirait des surprises et preterait a 
de veritables fraudes. L'unanimite n'ayant pu etre obtenue pour 
cette proposition, il s'en produisit une qui etait subsidiaire : ; ' la 
transformation en pleine mer d'un batiment de guerre en navire 
marchand est interdite pendant la guerre." On avait en vue la 
situation d'un batiment de guerre (ordinairement un navire de 
commerce recemment transforme) depouillant son caractere pour 

Discussion at London, 1909. 187 

pouvoir librement se ravitailler on se reparer dans un port neutre, 
sans subir les restrictions imposees aux batiments de guerre. La 
position de l'Etat neutre entre les deux belligerants ne sera-t-elle 
pas delicate et ne s'exposera-t-il pas a des reprocbes, qu'il traite en 
navire de commerce ou en batiment de guerre le batiment recem- 
ment transform^? L'accord se serait peut-etre fait sur cette 
proposition, mais il a semble qu'il etait bien difficile de s'attacher 
a ce cote secondaire d'une question qu'on ne pouvait songer a 
regler dans son ensemble. C'est la raison determinante du rejet 
de toute proposition. 

Pour etre complet, je mentionnerai une proposition qui, partant 
de la possibilite d'une retransformation, voulait au moins en 
diminuer les inconvenients au moyen d'une certaine publicite : " la 
retransformation d'un navire marcband en batiment de guerre, 
dans le cas ou ce navire a deja une fois change de caractere 
pendant la guerre, doit etre communiquee aux differents Gouverne- 
ments neutres au moins quinze jours d'avance." 

La conclusion de ce rapport est done purement negative, puisque 
aucune proposition n'a pu etre admise. II en resulte que la ques- 
tion reste entiere. (Ibid., p. 340.) 

British view in 1908. — In a preparator} 7 memorandum 
setting forth the British view upon the points enumer- 
ated in the program of the international naval con- 
ference in 1908, the statement in regard to conversion 
of merchant vessels into warships on the high seas was 
as follows : 

No general practice of nations bas prevailed in the past on 
this point from which any principles can be deduced and formu- 
lated as the established rules of international law. So far as 
can be ascertained there are no precedents on the subject. 

The question is regarded by His Majesty's Government as one 
to be decided by reference to the rights of neutrals. Resistance 
on the part of a neutral merchant vessel to the exercise of the 
admitted belligerent right of visit and search, involving as it 
does the possible condemnation of the vessel as good prize, is so 
serious a matter for the neutral that it is essential that there 
should be no possibility of doubt as to the ships that are en- 
titled to exercise this right. It is submitted that the true rule 
to be deduced from the principles which govern the relation be- 
tween belligerents and neutrals is that the exercise of the right 
to visit and bring in neutral merchant vessels is strictly limited 
to ships being, and known to be, public ships of the belligerent 
fighting fleet flying the pendant. It would be a grave extension 
of that right if it were held to be permissible to exercise those 
powers by means of vessels, believed by neutrals to be peaceful 

188 Conversion of Merchant Ships Into Ships of War. 

merchant vessels, suddenly and without warning converted into 
ships of war, possibly in the immediate neighborhood of vessels 
which they desire to stop and search. Any further limitation 
to the security of peaceful commerce or of the freedom of neutral 
vessels to navigate the seas is opposed to the general interests 
of nations, while the exercise of belligerent force against neutrals 
in the manner indicated above would almost inevitably lead to 
friction, with the attendant danger of bringing other nations into 
the arena of war. The somewhat arbitrary powers accorded to 
belligerents as against neutrals for the protection of the vital 
interests of the former should not, it is submitted, be increased, 
by according sanction to proceedings which, however, they may 
be argumentatively sustained, are entirely novel and without the 
support of any existing principles of international law. His 
Majesty's Government, therefore, regard it as of great importance 
to neutrals that units of the fighting force of a belligerent should 
not be created except within the jurisdiction of that power. 
(Correspondence and Documents, International Naval Conference, 
Miscellaneous, No. 4 (1909), p. 10.) 

Instructions to British delegates, 1908. — In the instruc- 
tions to the British delegates to the international naval 
conference in 1908, Sir Edward Grey said: 

The condition under which merchant ships may be converted 
into warships were much debated at the second peace conferee ce, 
and on a number of points an agreement was reached, which was 
finally embodied in one of the conventions annexed to the final 
act of the conference. In regard to one important point, however, 
namely, as to whether such conversion could be legally effected 
on the high seas, it was found impossible to arrive at any under- 
standing. The preamble of the convention referred to accordingly 
recites that: 

" Whereas the contracting powers have been unable to come to 
an agreement on the question whether the conversion of a mer- 
chant ship into a warship may take place upon the high seas, it 
is understood that the question of the place where such conversion 
is effected remains outside the scope of this agreement, and is in 
no way affected by the following rules. * * * " 

In the presence of this clearly recorded divergence of views it is 
not possible to expect that the forthcoming conference could bring 
about agreement as to the existing law, but His Majesty's Govern- 
ment earnestly hope tbat means will be found to frame a common 
rule to which the principal naval powders will bind themselves 
to conform in future. Such a rule must obviously be in the 
nature of a compromise, and it would have to be established by 
way of a convention. Apart from the important question of 
principle involved, there are two practical considerations which 

British Instructions, 1909. 189 

have chiefly weighed with His Majesty's Government in refusing 
to recognize the right to convert merchant vessels into ships of war 
on the high seas. One is the facility which such a right would 
give to the captain of a merchant vessel qualified to act as a 
warship, to seize enemy or neutral ships without warning. The 
other is that enemy vessels under the mercantile flag, but suit- 
able for conversion, would be able, as merchantmen, to claim and 
obtain in neutral ports all the hospitality and privileges which 
would, under the accepted rules of naval warfare, be denied to 
them if they were warships. Availing herself of these advantages, 
such a vessel, found in distant waters after the outbreak of hos- 
tilities, would be enabled to pass from one neutral port to an- 
other until she reached the particular point in fcer voyage where 
she might most conveniently be converted into a commerce de- 
stroyer. These difficulties might be met by restricting the right 
of conversion on the high seas to the case of vessels which had 
previously been specifically and publicly designated by the re- 
spective Governments as suitable for the purpose and borne on 
their navy lists; and by subjecting such vessels, while in neutral 
ports, to the same treatment as belligerent men-of-war. But any 
other suggestions which may be made in the desired direction, 
His Majesty's Government will be ready to examine sympatheti- 
cally. (Correspondence and Documents, International Naval Con- 
ference, Miscellaneous, No. 4 (1909), p. 31.) 

Report of British delegates to international naval 
conference. — The report of the British delegates to the 
international naval conference shows that the question 
of conversion of merchant vessels into war vessels was 
not brought to a satisfactory conclusion : 

The one subject of the programme which has found no men- 
tion in the declaration is the conversion of merchant-vessels into 
men-of-war on the high seas. The question is one of those which 
had been left unsolved by the second Peace Conference, and so 
decided was the division of opinion subsequently revealed by the 
memoranda exchanged by the several Governments before the 
meeting of the present Naval Conference that it had been found 
impossible to state, in the shape even of a mere Basis of Discus- 
sion, an underlying general principle commonly accepted. In our 
instructions the hope was nevertheless expressed that some means 
might be found of reconciling the opposing views and to unite on 
the basis of a compromise, for which we were allowed a fairly 
wide discretion. We regret, however, that in this instance all 
our efforts in bringing about an understanding were unsuccessful. 
We did not fail to put forward the arguments which, in the view 
of His Majesty's Government, militate against the recognition 
of an unrestricted right of conversion on the high seas, and we 

190 Conversion of Merchant Ships Into Ships of War. 

endeavored in vain to obtain, in return for a recognition of such 
right subject to proper limitation, some guarantees against the 
abuses to which it appears to be obviously liable. We were met 
with a refusal to maKe any concessions or to abate one jot from 
the claim to the aDSolutely unfettered exercise of the right, 
which its advocates vindicate as a rule forming part of the exist- 
ing law of nations. In these circumstances we felt that we had 
no option but to decline to admit the right, and the result is 
that the question remains an open one. (Correspondence and 
Documents, International Naval Conference, Miscellaneous, No. 4 
(1909), p. 101.) 

Opinion in England. — The fact that the International 
Naval Conference of 1908-9 was unable to reach an agree- 
ment on the question of conversion was the cause of many 
remarks at the time when the naval prize bill involv- 
ing matters of war on the sea was before the British 
Parliament. Comments on the same subject appeared 
elsewhere. The opinions expressed by commercial 
bodies and other organizations show great diversity. 
Frequently petitions to the foreign office requested the 
rejection of the Declaration of London on the ground 
that the regulation of the conversion of private vessels 
into w r ar vessels was not included. One of the ablest of 
these petitions of protest is that of the London Chamber 
of Commerce of November 11, 1910, which, among other 
reasons, states : 

That the absence of any provision in the declaration for prevent- 
ing the conversion of merchant vessels into commerce destroyers 
on the high seas constitute a valid reason for praying His 
Majesty's Government to decline to ratify the declaration or to 
proceed with the naval prize bill. (Correspondence Respecting 
the Declaration of London, Miscellaneous, No. 8 (1911), p. 14.) 

In reply to this objection on the part of other com- 
mercial bodies, the foreign office had said : 

Sir Edward Grey regrets equally with the chamber of commerce 
that it was not found possible to come to any arrangement on 
this important question, but, as stated, on page 101 of the Blue 
Book, the division of opinion between the powers represented at 
the conference was so decided that it was not possible to state, 
even in the shape of a basis of discussion, an underlying general 
principle commonly accepted. In these circumstances, it can 
hardly be disputed that the course adopted by this country — 

Opinion in England. 191 

namely, refusal to admit the right claimed, the question thus 
remaining an open one — was the best which could be followed. 

The chamber of commerce no doubt realizes that by the omis- 
sion of this subject from the declaration iio change is made in 
the existing position, and this being the case, the failure to come 
to an arrangement on this point would not justify the loss of the 
advantages which Sir E. Grey considers accrue to this country 
under the provisions of the declaration. (Ibid, No. 4 (1910) , p. 8.) 

A vote favorable to the naval prize bill was passed in 
the British House of Commons, but was not passed by 
the House of Lords; consequently the matter remains 
for the time being* unsettled. 

Of the discussion in Great Britain, Norman Bentwich, 
who has given particular consideration to the declara- 
tion, says : 

As there appears to be some confusion on the point in the public 
mind, it may be as well to state that England's objection is not 
to the conversion of merchantmen in general— we propose to use 
a number of our own liners for naval purposes in case of war — 
but to their conversion on the high seas. Most of the Continental 
Powers, possessing as they do few ports outside Europe, claim a 
right to convert ships in their volunteer navy whenever and 
wherever they choose. England, on the other hand, who, through 
her possession of naval stations in every sea, is in a stronger 
position, claims that the conversion must not take place after the 
opening of hostilities on the high seas, but only within the 
national jurisdiction. The Continental demand undoubtedly opens 
the way to grave abuses. The " sort of warship " is able as a 
merchantman before conversion to obtain in a neutral port the 
hospitality and often the necessary supplies for her new career, 
then at a favorable moment to take out her armament, run up 
the naval flag, and swoop down on any merchantman, enemy or 
neutral, whom she may meet ; and, later it may be, when fleeing 
from the enemy's cruisers, to resume her peaceful character and 
seek the shelter of a neutral port. The Conference was not un- 
willing to pass a rule that reconversion on the high seas to 
mercantile character is forbidden during the war ; but as agree- 
ment on the main question was not attainable, the whole subject 
was, in the end, left open. 

It has been urged by several leading Chambers of Commerce 
in this country that the failure to secure the acceptance of our 
standpoint at the Conference should be made a ground for not 
ratifying the Declaration ; but this seems illogical. The Declara- 
tion does not in any way prejudice our position in the matter; 
we are free to protest against any belligerent who adopts the 

192 Con version of Merchant Ships Into Ships of War. 

practice in the future. But, it is said, the failure of The Hague 
and London Conferences to come to an agreement upon the sub- 
ject shows that the Continental Powers intend, in case of war, to 
enforce their claim to convert merchantmen on the high seas. 
Very possibly. But they will do the same whether or not the 
declaration is ratified, and our ratification will not tie our hands 
in the least, while The Hague convention explicitly reserves our 
right of action. (Bentwich, Declaration of London, p. 13.) 

Neutral obligations. — A neutral State is under certain 
obligations to prevent acts which might be construed as 
failure to observe neutrality. The general statement on 
this subject is according to the Thirteenth Hague Con- 
vention of 1907 : 

Akt. 8. A neutral Government is bound to employ the means 
at its disposal to prevent the fitting out or arming of every vessel 
within its jurisdiction which it has reason to believe is intended 
to cruise, or engage in hostile operations, against a power with 
which that Government is at peace. It is also bound to display 
the same vigilance to prevent the departure from its jurisdiction 
of every vessel intended to cruise, or engage in hostile operations, 
which has been, within the said jurisdiction, adapted entirely 
or in part for use in war. (Convention Concerning the Rights 
and Duties of Neutral Powers in Maritime War.) 

The same convention provides : 

Art. 13. If a power which has been informed of the outbreak 
of hostilities learns that a belligerent ship of war is in one of 
its ports or roadsteads or in its territorial waters, it must notify 
the said ship to depart within 24 hours or within the time pre- 
scribed by the local regulations. 

Art. 18. Belligerent ships of war can not make use of neutral 
ports, roadsteads, or territorial waters for replenishing or in- 
creasing their supplies of war material or their armament or 
for completing their crews. 

Art. 24. If notwithstanding the notification of the neutral 
authorities, a belligerent ship of war does not leave a port where 
it is not entitled to remain, the neutral power is entitled to take 
such measures as it considers necessary to render the sbip in- 
capable of taking the sea during the war, and the commanding 
officer of the ship must facilitate the execution of such measures. 

From the above provisions it is evident that responsi- 
bility may rest upon a neutral to prevent the departure 
of a vessel which there is reason to believe is intended 
to cruise against a power with which the neutral is at 

Neutral Obligations. 193 

peace. In absence of provisions to the contrary the 
period during which a ship of war may remain is 24 
hours. The ship of war is not to make use of the neutral 
port for increasing its supply of war material. The neu- 
tral may intern a vessel which does not conform to its 
regulations in regard to sojourn. There is a compre- 
hensive article relating to the whole of the thirteenth con- 
vention which states: 

Akt. 25. A neutral power is bound to exercise such surveillance 
as the means at its disposal allow to prevent any violation of the 
provisions of the above articles in its ports or roadsteads or in 
its waters. 

While the belligerent is by this convention under obli- 
gation to respect the neutrality of States which are not 
parties to the war, the neutral States are under obliga- 
tion to prevent the abuse of their jurisdiction. 

Uncertainty as to vesseVs character. — At the present 
time, while the convention concerning the conversion of 
merchant ships into war ships regulates conversion to 
some degree among States which have become parties to 
it, yet there are important respects in which the conven- 
tion fails. The place of conversion and the matter of 
reconversion particularly remain open. 

These uncertainties make the position of the neutral 
one of difficulty. If the neutral State does not use u due 
diligence " to prevent fitting out and arming, the neutral 
State may become liable for its neglect. On the other 
hand the — 

Belligerents are bound to respect the sovereign rights of neu- 
tral powers and to abstain, in neutral territory or neutral waters, 
from all acts which would constitute, on the part of the neutral 
powers which knowingly permitted them, a nonfulfilment of their 
neutrality. (Convention, Rights and Duties of Neutral Powers in 
Maritime War, art. 1.) 

The neutral State would naturally be reluctant to inti- 
mate to a belligerent that the belligerent was not observ- 
ing his obligations under this convention. The tempta- 
tion to pass beyond the rights permitted under the con- 
vention would, however, be strong in case of a private 
vessel which was about to be transformed into a vessel of 
60252—12 13 

1 94 Conversion of Merchant Ships Into Ships of War. 

war. A bona fide private vessel would not be subject to 
the limitations on period of sojourn and on character of 
goods which it might take on board which would apply 
to a ship of war. Conversion from a private to a ship 
of war would, according to accepted rulings, also affect 
the neutral goods on the converted vessel. Neutral goods 
on board a vessel of war would under the rulings of 
British prize courts have been regarded as liable to cap- 
ture. The American decisions have in some cases been 
more lenient (The Nereide, 9 Cranch; Sup. Ct. Kepts., p. 
388.) It is probable that neutral goods placed, in good 
faith as to the private character, on board an enemy 
vessel would not be subjected to the extreme penalty of 
confiscation if the vessel should be transformed into a 
ship of war. 

The neutral merchant would seem to be entitled to 
some means by which knowledge as to the probable 
character of a vessel for a voyage may be obtained. The 
neutral State would be much more justified in seeking 
such information as would make it free from accusation 
of neglect to fulfill its obligations. 

Resume. — The commander has reason to believe that 
the Robin, which is taking on supplies in the nature of 
contraband, is to be transformed into a war vessel. If 
the Robin is to be transformed the opportunity to take 
war supplies in a neutral port and the further privilege 
of remaining in the port unrestrained by the usual 24- 
hour rule gives the Robin an advantage over a ship of 
war of State D though the Robin will shortly assume 
that character. The commander of the United States 
cruiser is therefore justified in requesting that the Robin 
be interned or otherwise restrained. 

As the neutral State F would be liable for failure to 
observe strict neutrality if it did not investigate such a 
claim, it would be expedient for State F to take such 
action as may relieve it of responsibility. If it be found 
that the vessel may be converted, the neutral State may 
take the necessary measures to remove grounds for 
claims of indemnity. This may be done by placing the 
vessel under obligation to maintain its private character 

Solution. 195 

till it reaches a port within the jurisdiction of belligerent 
State D. If such a pledge can not be secured, there 
would be ground for restraint or internment or such 
other action as would secure neutral State F against lia- 
bility for neglect to use due diligence. 


The action of the commander of the cruiser of the 
United States is warranted. 

Neutral State F should take such action as would 
maintain its neutrality by obliging the Rooin to give a 
guaranty that it would not change its private character 
till it reached a port under the jurisdiction of its own 
flag or a port under jurisdiction of an ally ; or neutral 
State F may maintain its neutrality by other means of 
restraint even by internment if necessary. 


Aerial jurisdiction : Page. 

Hazeltine, H. D., views on . 62 

de Valles, opinion on 67 

Aerial navigation: 

Blockade, rules of, as applicable to i 76 

Carriage of dispatches, case of Atalanta 77 

Codes for, proposed in 1910 67 

Conference, views of — 

1909 62 

1910 64 

Fauchille, views of 65 

Jurisdiction of — 

Fauchille's views ■ 65 

Juridical Conference of 1910, views on 66 

von Bar's views 66 

National regulations — 

France , 68 

General remarks 69 

Aerial space, use of, various opinions 75 

Aerial zones '. 63 

Air craft: 

Belligerent, in neutral territory 85 

In peace, proposed rules, 1911, Institute of International 

Law 73 

In war — 

^Analogies, legal, with shipping 64 

Blockade, rules of, applicable to 90 

Capture — 

No right in neutral waters 91 

On high seas 91 

France, views of, 1907 60 

Hague conventions 58 

History of 57 

Military organization of, requires new rules 61 

Proposed rules — 

Fauchille 74 

Institute of International Law, 1911 73 

von Bar, 1911 72 

Since 1907 59 

Situation II 56 

Neutral, jurisdiction over, in belligerent territory 88 


198 Index. 

Air space : Page. 

Jurisdiction in 79 

Jurisdiction in, United States 83 

Neutralization of 63 

Private rights in 81 

Area : 

Blockaded, definition 115 

Mined, limitations 117 

Of war, limitations 115 

Atalanta, case of, as establishing principles controlling 

aerial navigation in war 77 

Austria, conversion of merchant ships into warships : 

At Hague, 1907 164, 174 

At London, 1909 184 

In 1908 . 174 

Austria-Hungary, contraband, views on, at London Confer- 
ence 139 

Bar, von : 

Proposed rules for aerial navigation, 1911 72 

Views regarding aerial navigation 66 

Base : 

Coaling in neutral port 133 

In neutral territory forbidden . 153 

Belgium, regulations in war for belligerent's vessels 134 

Belligerency, recognition of 19 

Belligerent : 

Protectorate, exercise of, while belligerent 106 

Supplies to, in neutral port 144 

Vessels in Belgian ports 134 

Blockade : 

Air craft in war, application of rules of, to 90 

Area of, definition 115 

Chilean insurrection, 1891 ; 28 

During insurrection, views of United States State De- 
partment 29 

Rules of, as applicable to aerial navigation 76 

Brazil : 

Insurgents, interference with foreign commerce forbid- 
den, 1894 41 

Neutrality proclamation, 1898 145 

Cables, insurgency does not permit interference with 46 

Chile : 

Blockade, during insurrection 28 

Insurrection in, instructions to United States forces — 25 

China, insurrection, protection to foreign trade 52 


Destined for neutral port not contraband 142 

For belligerents in Belgian ports 134 

Index. 199 

Coal — Continued. Page. 

Furnishing of, in neutral port makes that port a base 154 

Neutrality proclamation, Brazil, 1898 145 

Coaling : 

In neutral port, Situation V 130 

Neutral obligations regarding 132 

Stations, lease of 96 

Colliers, auxiliary, status of 155 

Colombia : 

Declaration proclaiming insurgents as outlaws 14 

Indemnity for property seized during insurrection 47 

Insurgents, damages caused by, not reimbursed 51 

Congo, lease of neutralized territory, terms of 94 

Continuous voyage, Declaration of London, British opin- 
ions , 110 

Contraband : 

Declaration of London 137 

State, duty of, regarding 131 

Convention : 

United States and Cuba — 

1903, leasing territory . 101 

1904, definition of relations between 103 

Conversion of merchant ships into warships. (See Mer- 
chant ships.) 

Cuba : 

Control over, by United States under convention 104 

Insurgents, appeal of foreigners for protection against- 43 

Lease of territory, interpretation of 105 

Leased territory — 

Continuous voyage, doctrine of, as applied to 109 

United States may import war materials only into_ 105 

Neutral, when United States is at war_„ 112 

Neutrality of — 

According to British precedents 107 

According to Declaration of London . 108 

Property, foreign, protection of, during insurrection, 

1906 50 

United States and — 

Relations under convention proclaimed 1904 103 

Relations established by Spanish-American War 99 

Visit and search during insurrection in 22 

Declaration of London, Cuba, neutrality of, under 108 

Fauchille : 

Aerial navigation, views of 65 

Air craft — 

In war, rules proposed by 74 

Neutral, in belligerent jurisdiction, opinion 89 

Foreigners, protection of, during insurrection 48,50 

200 Index. 

France: rage. 

Aerial navigation, views on, 1910 64 

Air craft in war, views in, regarding, 1907 60 

Conversion of merchant ships into warships — 

At Hague, 1907 167 

In 1908 i 176 

Gelbtrunk, Rosa, case of : 44 

Germany : 

Contraband, view's on, submitted to London Conference- 139 
Conversion of merchant ships into warships — 

At Hague, 1907 165, 174 

At London, 1909 179 

In 1908 174 

Great Britain : 

Conversion of merchant ships into warships — 

At Hague, 1907 162,166 

At London, 1909 179 

In 1908 187 

Declines to recognize Colombian declaration regarding 

insurgents as outlaws 14 

Ionian Islands, protectorate over 106 

Neutral ports, use of 147-148 

Position regarding blockade during Chilean insurrec- 
tion 29 

Grotius, strategic areas, views of -. 114 

Hague Convention, 1907, merchant ships, conversion of, into 

warships, retransformation 173 

Hague conventions, air craft in w T ar 58 

Haiti : 

Decision in case of Haytien Republic 35 

Insurgency, state of, does not permit interference with 

cables 46 

Insurgents, as pirates 16 

Haytien Republic, case of 34 

Hazeltine, H. D., Cambridge University, aerial jurisdiction, 

views on 62 

High seas, news gathering on, in war 121 

Holland, neutral obligations regarding coaling 132 

Indemnity : 

Insurgency — 

Property seized during 47 

United States declines to pay, Philippine insurrec- 
tion 47 

Institute of International Law : 
Air craft — 

In peace, proposed rules, 1911 73 

In war, proposed rules, 1911 73,74 

Index. 201 

Insurgency : Page. 

Cables must be untouched during, except 46 

Cuba, foreign property, protection during insurrection 50 

Declaration of London . 14 

Foreigners, redress for damage suffered through . 44 

Indemnity for property seized during 47 

Indemnity, United States declines to pay, Philippine in- 
surrection 47 

Law of 11 

President of United States, proclamation regarding in- 
surgency in Mexico, 1912 15 

Recognition of 19 

Santo Domingo, protection of foreigners during 48 

United States and Cuba 12 

United States Congress gives definite status of 14 

Visit and search, accompanying right 20 

Insurgents : 

As pirates — 16 

Brazilian, forbidden to interfere with foreign commerce, 

1894 41 

Contraband, right of insurgents to interfere with- 32 

Damages caused by, not reimbursed, Colombia, 1907 51 

Foreigners, protection of, against 43 

Neutral shipping, right to interfere with 33, 35 

Pirates, insurgents not 46 

Property, foreign, interference with 34 

Insurrection : 

Blockade during Chilean 28 

Chile, case of Itata ■ 25-26 

Discussion of problems arising from 10 

Protection to foreign trade, China, 1911 52 

Ionian Islands: 

Neutrality during Crimean War under protectorate 106 

Protectorate, terms of 106 

Italy, conversion of merchant ships into warships : 

At Hague, 1907 . 163, 168 

At London, 1909 183 

Itata, case of 26 

Japan : 

Conversion of merchant ships into war ships, at Hague, 

1907 164, 168 

Neutral ports, use of_ 148-149 

Ordinance regarding Defense Sea Areas, 1904 122 

Strategic areas, regulations for 122 

Jurisdiction : 

Acquisition of 93 

Aerial. (See Aerial jurisdiction.) 

202 Index. 

Jurisdiction — Continued. Page. 

In air space, United States 83 

General 79 

Kleen : 

Coaling in neutral port 134 

Contraband, opinion regarding 132 

Labrea, steamship, case of 46 

Lease : 

Cuba, interpretation of '. 105 

Cuban territory, of 1903 101 

Of coaling stations 96 

Political, of territory, Kongo 94 

Leased territory, importation of war material into, of Cuba- 105 

London, Declaration of, unneutral service 156 

Merchant ships, conversion of, into warships 169 

Austria — 

At Hague conference, 1907 164 

At London, 1909 184 

In 1908 174 

France, in 1908, preparatory to London conference t 176 

Germany — 

At Hague conference, 1907 164, 174 

At London, 1909 184 

In 1908 179 

Great Britain — 

At Hague conference, 1907 162 

At London, 1908-9 179 

In 1908 1 187 

Opinion in 190 

Hague convention, 1907 166. 173 


At Hague conference, 1907 163 

At London, 1908 183 

In 1908 176 

Japan — 

At Hague conference, 1907 164 

In 1908 177 

London, 1909 185 

Naval War College, views of, in 1906 160 

Netherlands — 

At Hague conference, 19Q7 163 

At London, 1909 185 

In 1908 177 

Neutral — 

Difficulties 193 

Obligations 192 

Peterburg, case of 171 

Index. 203 

Merchant ships, conversion of, into warships — Continued. Page. 

Retransformation 173, 186 

Russia — 

At Hague conference, 1907 163 

In 1908 177-178 

Smolensk, case of 171 

Solution of Situation VI 194 

Spain, in 1908, preparatory to London Conference 176 

United States — 

At Hague Conference, 1907 164 

At London, 1909 185 

Mexico, insurgency in, proclamation of President of United 

States 15 

Mined areas 118 

Hague Conference, 1907 120 

Limitations 117 

Neutrals, dangerous to 119 

On high seas 119 

Mines : 

In straits 120 

On high seas — 

Precedents 118 

Russo-Japanese War 118 

Navigation, aerial. (See Aerial navigation.) 
Netherlands, conversion of merchant ships into warships : 

At Hague, 1907 163, 168 

At London, 1909 185 

In 1908 177 

Neutral : 

Obligations — 

As to conversion of merchant ships 192 

Regarding coaling 132 

Treaty of "Washington 143 

Ports — 

Belligerent use of 147 

Coaling in 133 

Hague, 1907. 149 

Vessel, protection by belligerent 111 

Neutrality : 

Brazil's proclamation, 1898 145 

Cuba, when United States is at war 112 

Protectorate, affected by 106 

Neutralization of air space 63 

News-gathering agencies : 

In time of war 121 

In war on high seas 121 

Peterburg, case of, Russo-Japanese War, 1904 171 

204 Index. 


Phillimore, strategic areas, views of 115 

Pirates : 

Insurgents as 16 

Insurgents not 46 

Piatt amendment, 1901, relations of United States and 

Cuba under 101 

Property, foreign, insurgents' right to interfere with 34 

Protection : 

Degree of, given by a State which owes it to another 94 

Effect of belligerent, as to neutral character— 111 

Protectorate, neutrality, as affected by 106 

Quang-nam, case of, strategic area, trespass on 126 

Recognition : 

Of belligerency 19 

Of insurgency 19 

Renault, views of, at Hague Conference regarding air craft 

in war 60 

Rights, private, in air space, codes of various countries 81 

Russia : 

Contraband, views on, at London Conference 141 

Conversion of merchant ships into warships — 

At Hague. 163 

In 1908 166 

Neutral ports, use of__ 148, 149 

Russo-Japanese War: 

Peterburg, case of 171 

Smolensk, case of 171 

Santo Domingo, insurgency, foreigners, protection of, during. 48 

Search. (See Visit and search.) 

Situation I. Merchant vessels and insurgents : ' • 

Conclusions 54 

Solution 55 

Situation II. Air craft in war : 56 

Situation III. Cuba, neutrality of 93 

Situation IV. Strategic areas 114 

Situation V : 

Coaling in neutral port 130 

Solution 158 

Situation VI. Conversion of merchant ships into warships — 159 

Smolensk, case of, Russo-Japanese War, 1904 171 

Spain : 

Neutral ports, use of 147, 148 

Visit and search, right during Cuban insurrection 22 

State, duty of, as to contraband 131 

Straits : 

In time of war, control of 1 120 

National control over 120 

Index. 205 


Strategic areas: 

Case of infraction of rule, war of 1904 126 

Declared, should be avoided by neutrals 128 

Grotius, opinion of 114 

Japanese ordinance, 1904 122 

Phillimore's opinion 115 

Resume of opinions on 128 

Situation IV : 114 

Situation IV, solution 129 

Trespass on, by ship Quang-nam 126 

Supreme Court, United States, war de facto, legal conse- 
quences 11 

Treaty, Spanish-American, 1898, relations under, of United 

States and Cuba 100 

United States : 

Air space, jurisdiction in 83 

Blockade during insurrection, position regarding 29-32 

Chilean insurrection, instructions to United States 

forces 25 

Coaling stations, need of 98 

Contraband, views on, submitted to London Conference- 139 
Conversion of merchant ships into warships — 

At Hague, 1907 164 

At London, 1909 185 

Cuba and, relations under convention proclaimed 1904_ 103 

Cuba, relations established by Spanish-American War 99 

Cuban neutrality when United States is at war 112 

Declines to recognize Colombian declaration regarding 

insurgents as outlaws 14 

Haytien Republic, case of 37 

Indemnity, declines to pay, to foreigners in Philippine 

insurrection ) 47 

Insurgency — 

Regulations, United States Navy, affecting 26 

Status of 14,15 

Insurgents — 

Interference with foreign commerce 37 

Refuses to allow Brazilian, to interfere with com- 
merce 41 

When are they pirates? 16 

Relations of, to development of law of insurgency 11 

Visit and search — 

During insurrection 22 

Law authorizing private vessels to resist 24 

Unneutral service 155 

Vessels, merchant, and insurgents, Situation I 9 

206 Index. 

Visit and search : Page. 

By established State, no war existing 21 

Insurgent right to 23 

When authorized 27 

When unauthorized 27 


Area of, limitations 115 

De facto, legal consequences 11 

Washington : 

Ionian Islands, decision of, regarding neutrality of 

islands 106 

Treaty of, neutral obligations 143 

Zones, aerial 63